Kristine L. Solheid, 7000 Union Hill Blvd., P. O. Box 114, Belle Plaine, MN 56011 (for Appellant father)

Allen P. Eskens, Peggy Rockow-Eskens, Rockow Eskens Law Office, 305 Graif Building, P.O. Box 3412, Mankato, MN 56002 (for Appellant mother)

Elizabeth W. Bloomquist, Special Assistant Martin County Attorney, 100 Downtown Plaza, P.O. Box 751, Fairmont, MN 56031 (for Respondent Martin County)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Lansing, Judge.

Both parents appeal from judgment terminating their parental rights under Minn. Stat. § 260.221, subd. 1(b)(4). Because we find the termination of parental rights to be supported by substantial evidence and not clearly erroneous, we affirm.

Shortly after C.P.U.'s birth in 1991, Human Services of Faribault and Martin Counties received a referral regarding C.P.U.'s failure to thrive. Appellants were offered parenting classes and counseling. This case file was closed when C.P.U. began to thrive. In October 1993 Human Services again became involved after mother was seen slapping C.P.U. Another assessment was done, messy housekeeping was noted, and parenting classes and family preservation services were offered. By February 1994 significant progress had been made and Human Services closed the case file.

On four occasions in April 1994 and June 1994, public health and Human Services officials were involved with appellants in efforts to clean up what was reported as appellants' "garbage house."[2]

On June 2, 1994, C.P.U. and D.M.P.U. were placed in foster care. On June 16 appellants admitted that the children were in need of protection or services (CHIPS). The court approved a case plan requiring that the house be cleaned daily, utility services be maintained, and appellants accept family preservation services and attend early childhood family education (ECFE) classes. A placement plan was developed and revised in January 1995. At present, the children remain in foster care pending a determination of appellants' parental rights.

Appellant Mother

Dr. Joseph Switras, a psychologist who diagnosed mother with (1) borderline intellectual functioning, (2) dysthymia disorder with atypical features, and (3) borderline personality disorder, testified that this combination would limit mother's ability to improve her parenting, that therapy on all three issues was long term, and that he could not give an opinion on whether she could be cured in light of the particular difficulty in treating her borderline personality disorder. Switras also testified that to be treated successfully, mother would have to commit to attending and participating in therapy and that such commitment was unlikely, based on the diagnoses and her past inability to follow through. The court also received evidence that mother's parental rights had been terminated in regard to three other children in Iowa.

The trial court determined that mother was palpably unfit to be a party to the parent-child relationship, lives only in the here and now, has no goals, is suspicious and distrustful, and believes what happens to her is the result of outside influences. The trial court noted that mother's ability to comprehend the environment around her is limited, as is her intellectual functioning; she angers quickly and reacts by striking others. The trial court also found that mother would be successful as a parent only with a great deal of support in almost every aspect of parenting, and she would need to apply herself consistently.

In addressing the Minn. Stat. § 518.17 (1994) factors, the trial court found that mother lacks an intimate relationship with her children because she relates to them more as a child than a parent, and relates in ways that hurt them; that the children lived in an environment that was seldom safe for them because of poor housekeeping; that psychological testing and past failures to improve indicate no substantial improvement can be expected in the foreseeable future; and that continuation of the unsafe and hurtful conditions was not desirable. The trial court determined that the best interests of the children were served by terminating mother's parental rights to them.

Appellant Father

Appellant father had been sexually victimized when he was eight or nine years old; when he was 17 he sexually offended against a child. Father was convicted in 1987 of lascivious acts with a child, a class D felony, in Iowa.

The 1991 Minnesota Human Services family assessment expressed concerns about father's sexual misconduct conviction. Father inquired into the types of sex offender programs in Minnesota, and professed a willingness to undertake treatment; however, he did not complete any treatment.

Over the years, three health care professionals saw father. In March 1992 he saw psychologist Dr. Mark Anderson, who diagnosed depression and a personality disorder, but noted that father quit treatment too soon for a complete diagnosis.

In May 1994, pursuant to a case plan developed by Martin County, father was referred to a therapist for treatment. He saw Bruce Hawkinson, a licensed psychologist, for evaluation. Father attended seven out of ten evaluation sessions. Father admitted to sexual contact with young girls in 1979 and in 1987, but refused to admit he had any problem with sexual attraction to children. Father's sessions with Hawkinson then terminated, and he did not participate in sex offender treatment. Hawkinson diagnosed father with pedophilia and recommended that he have no unsupervised contact with children until he successfully completed treatment. Father received no treatment.

In June 1995 father went to see Dr. Switras. He completed sixteen sessions, but did not receive any sexual offender treatment. Switras diagnosed father with depression, personality disorders, and pedophilic tendencies. Again, father did not receive treatment.[3]

Three other individuals also testified about father. Foster mother K.F. testified that appellants told her that father ran into mother with an automobile after a fight, that father spoke of suicide and suicide attempts during visitation, and that during one visit the father said to C.P.U., "I'm not your Dad. I'm your boyfriend, aren't I?"

The guardian ad litem testified that she is uncertain as to father's stability and ability to parent on a full-time basis, that father does not always act in appropriate ways with the children, and that although services had been provided to father and the family, there has been no consistent progress to provide a safe and nurturing environment for the children with their parents in the 21 months since they were placed in foster care.

Testimony by a case worker indicated that father did not want to go to sexual offender treatment despite having agreed to complete treatment, that father had not met the goals of the case plans, father had physical limitations in keeping a clean and habitable home, that the case worker was aware of 18-20 allegations of sexual abuse involving father, but knew of no arrests or convictions resulting from the allegations, and that pornographic material in father's home was accessible to children. Evidence also established that father has physical difficulties: diabetes, sleep apnea (a permanent condition that causes him to spontaneously fall asleep as many as 10-15 times an hour), and morbid obesity.

In addressing the best interests of C.M.U. pursuant to Minn. Stat. § 518.17, the trial court found that father has never been C.M.U.'s primary caretaker; he lacks a relationship with her beyond visitation; he has made no plans for assuming custody; he has both mental and physical problems that create a risk of harm to a child; he has depressive and personality disorders that thwart his understanding and implementation of parenting skills; he has untreated pedophilia that creates a risk he may sexually offend against his child; and he has sleep apnea that creates a risk that he might fall asleep while caring for his child. The trial court determined that it was in C.M.U.'s best interest to terminate father's parental rights. The trial court also terminated any rights to D.M.P.U. for the same reasons.

The standard of review in a termination case is whether "the findings of fact of the juvenile court are supported by substantial evidence and are not clearly erroneous." In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). Upon review, the court gives some deference to the trial court, but closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing. Id. Minn. Stat. § 260.221, subd. 1(b)(4) (1994), permits termination of parental rights on the grounds of palpable unfitness if there is a consistent pattern of specific conduct before the child or of specific conditions, directly relating to the parent and child relationship, either of which is of a duration or nature that renders the parent unable to care appropriately for the needs of the child for the reasonably foreseeable future.

The trial court must make clear and specific findings conforming to the statutory requirements, and the evidence must address conditions that exist at the time of the hearing. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). In determining whether termination of parental rights is appropriate, the best interests of the child must be the paramount consideration. Minn. Stat § 260.221, subd. 4 (1994); In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (citing In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986)).

Appellant Mother

Mother argues that the trial court erred in looking at past conditions rather than conditions on the date of trial. She argues that her house cleaning habits have changed, that she no longer lives with the other persons who were responsible for the conditions of the house, that she now lives in a suitable house made available through her family, and that her mother lives nearby and can provide family support. Further, mother maintains that she has complied with all other objectives of the CHIPS plan: utility services have been maintained; she has received the required psychological evaluation; she has participated in the required ECFE classes; and she does not keep dogs or cats in her house.

The trial court found that treatment services have been provided to mother for over 11 years with little success, and that although she is living in a home provided by her parents, there is no evidence that she will be able to maintain the home. The evidence supports the trial court's conclusion that support services are not likely to improve mother's parenting abilities for any substantial period because of her continuing borderline mental functioning, depression, and personality disorders.

The trial court did not clearly err in concluding that mother is unable to care for her children's physical and emotional needs for the reasonably foreseeable future.

Appellant Father

The trial court concluded that evidence showed that father has untreated pedophilia, a depressive disorder, a personality disorder, and sleep apnea. The court determined that these conditions relate directly to father's parent-child relationship and together they render father palpably unfit to care for a child for the reasonably foreseeable future.

Father also argues that the trial court has improperly looked at his past history and not at the conditions existing at the time of trial. He claims he is complying with the case plan, he is in therapy, and he has not had unsupervised contact with the children; there is no evidence that his housing is inappropriate, that his house is not clean or lacks utilities, or that he has cats or dogs. Further, father asserts that no evidence presented at trial shows he has a specific pattern of conduct directly relating to his relationship to the children that is permanently detrimental to them. Father argues that respondent has failed to show he is, or would be, a danger to children, or that his depression and personality disorder are conditions permanently detrimental to the children.

We must reject father's arguments. For at least 21 months, even with various services and assistance offered, father has not met the objective of providing a safe and nurturing environment for the children. Father's completion of treatment and continuing maintenance of an adequate household are uncertain. There is substantial evidence to support the trial court's finding that specific conditions relating directly to the parent-child relationship render father unable to care for the children for the reasonably foreseeable future. As such, the trial court's determination that father is palpably unfit is not clearly erroneous.

Father argues that he can interact with the children in an appropriate way and they are happy to see him. This, however, is not determinative of the children's "best interests." Minn. Stat. § 518.17, subd. 1. The trial court made specific findings as to the best interests of the children; these findings are supported by the record and are not clearly erroneous.

2. Failure to make findings regarding the county's reasonable efforts to rehabilitate or reunite.

After the decision of the trial court in this case, the Minnesota Supreme Court released In re Welfare of S.Z., 547 N.W.2d 886 (Minn. 1996). S.Z. held as a matter of first impression that a social service agency seeking to terminate parental rights on the basis of palpable unfitness must make reasonable efforts to rehabilitate a parent and to reunite the family, and that the trial court must determine whether reasonable efforts have been made. Id. at 892. The statutes giving rise to the Supreme Court's decision were not new.[4]

Appellants argue that S.Z. applies retroactively; respondent argues that S.Z. applies prospectively because it does not specifically state that it applies to pending cases or that it is to be applied in a retroactive manner. In this case we need not analyze the factors which determine prospective or retroactive applicability of case law. Even if we assume retroactive application of S.Z., we reach the identical conclusion reached by the court in that case:

that termination of * * * parental rights on the grounds of * * * palpable unfitness to be a party to the parent and child relationship is supported by clear and convincing evidence.

Id. at 894. S.Z. mandated that:

The court must make the determination of reasonableness. In some cases, any provision of services or further provision of services would be futile, and therefore unreasonable. This determination of reasonableness must be made by the court on the basis of the factors set out in Minn. Stat. § 260.012, and one of those factors is whether services are realistic under the circumstances. We conclude that when parental rights are terminated because the parent is palpably unfit to be a party to the parent and child relationship, the Act requires that the court make the determination of whether reasonable efforts have been made to rehabilitate the parent and to reunite the family, even if that determination is that provision of services for the purpose of rehabilitation is not realistic under the circumstances.

Id. at 892.

Appellant Mother

Close examination of the question of reasonable efforts for mother leads us to conclude that a reversal and remand is not required. At trial, Dr. Switras testified that mother's ability to improve her parenting was limited by her diagnoses and her therapy was long term and uncertain in light of the difficulty in treating her personality disorder. Switras also stated that in order to be treated successfully, mother would have to commit to attending and participating in therapy, and such commitment is unlikely based on her diagnoses and past inability to follow through. The trial court specifically found that "in all likelihood support services would not be successful in improving [mother's] parenting for any substantial period of time." Remand is unnecessary because the record supports the trial court's finding that rehabilitation will not be successful due to mother's psychological difficulties.

Appellant Father

We conclude that in the case of father, the evidence demonstrates that provision of services for the purpose of rehabilitation is not realistic under the circumstances.

As early as 1991 Human Services expressed concern about father's sexual misconduct. Commendably, father asked about sex offender programs. Unfortunately, he failed consistently to take advantage of opportunities presented to him during the next four years. Despite evidence of pedophilic tendencies, he never received treatment. The concern of witnesses regarding this lack of desire or commitment to seek treatment was underscored by the trial court in its findings. Further, evidence establishes that father has sleep apnea, a condition which prevents him being the sole caretaker for these young children because he spontaneously falls asleep as many as 15-20 times an hour. Because testimony indicates his sleep apnea is permanent, any rehabilitation efforts would unfortunately be futile. Father also has other problems that need to be addressed; however, we conclude any services offered to rehabilitate father would have been equally futile given father's failure to cooperate in treatment for his pedophilic tendencies. Rehabilitation is not realistic under the circumstances.

Affirmed.

[ ]¹Parental rights of D.M.P.U.'s father were terminated after the trial court hearing in this case; that termination is not part of this appeal.

[ ]²Reports indicated the presence of dirty diapers, dog feces throughout the house, items piled up, dirty dishes, garbage all around, moldy food in the refrigerator, and little food for the family to eat. Electricity had been shut off because the bills had not been paid.

[ ]³At the time of father's termination of parental rights hearing he was scheduled to begin treatment, but it had not yet started.

[ ]⁴In S.Z. the court looked at various statutory provisions in reaching its conclusion: Minn. Stat. SSSS 260.221, subd. 1(b)(1) (enacted in 1988), (2) (enacted in 1988), (4) (enacted in 1990), (5) (enacted in 1995); 260.011, subd. 2 (enacted in 1990); 260.012 (enacted in 1989). 547 N.W.2d at 890-92.