Daniel C. Lee, Assistant Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

Appellant mother argues that the evidence was insufficient to support the district court's findings that there was clear and convincing evidence of three statutory grounds for termination of her parental rights. We affirm.

FACTS

Appellant mother Joy Torres is 26 years old. She is the mother of M.J.L. and R.D.L., twins, who were born October 3, 1991, and C.A.B., born December 15, 1992.[1]

Appellant grew up in Minnesota. At about age 17 she began to use alcohol and marijuana daily. At about age 19, she moved to California where she began to use LSD, cocaine, and heroin. While in California, appellant gave birth to a son who was removed from her care because of her drug activity. Appellant later voluntarily relinquished her parental rights to that child.

Appellant admits that she continued to use drugs while she was pregnant with her twins, M.J.L. and R.D.L. The twins stayed in the hospital for three weeks after their birth and were in foster care for about five months after their birth.

Appellant and her children moved from California to Alexandria, Minnesota in September 1993. She lived first with her parents, then with her aunt, and then moved to a trailer court.

In June 1993, appellant began her relationship with Tony Torres. Torres joined appellant and her children in October 1993 when they lived at the trailer court. On about December 3, 1993, appellant, Torres, and the children moved into a two-bedroom residence in Alexandria. At this time, Torres was drinking heavily and was violent. Appellant and the children stayed at the Crisis Center in Fergus Falls from about December 9, 1993 until December 14, 1993.

Appellant then went to California with her children, stayed about a week, and then to Georgia for another week, purportedly because her sponsor was there. Appellant then returned to Minnesota.

In January 1994, appellant reunited with Torres. On March 3, 1994, Torres came home drunk and assaulted appellant. The children were sleeping when he arrived, but he picked up M.J.L. and dropped her on her head. He also hit M.J.L. and R.J.L. as he took swings at appellant. Torres had previously hit both appellant and the children when he was drunk. That day, appellant applied for and received an order for protection against Torres. Appellant then went to Douglas County Social Services and requested inpatient psychiatric care for herself and foster care for her children.

On March 9, 1994, appellant told a social worker at Douglas County Social Services that she wanted to reunite with Torres. The next day, appellant signed a sworn affidavit in the order for protection file, requesting that the court dismiss the order for protection against Torres and a judge signed an Order for Dismissal of the Order for Protection. That same afternoon, appellant showed the social workers the order and said that Torres would be moving back into her home. A social worker told her that she thought it was a bad idea because it would put the children at risk. Torres was back in appellant's home within about twelve days of the assault.

A CHIPS petition was filed on March 17, 1994. On May 23, appellant admitted in court that the children were in need of protection or services because they had been the victims of physical abuse or because they reside with or had resided with a victim of domestic child abuse. The court adjudicated the children as being in need of protection or services. The dispositional hearing was completed on June 10, 1994. Appellant was ordered to (1) participate and cooperate with parental trainer Jan Ollig; (2) meet once a week with Connie Good at the Early Childhood building for individual work and to observe; and (3) attend family school. Torres was ordered to abstain from the use of alcohol or drugs, complete chemical dependency outpatient treatment, and then complete an abusers group.

On June 15, 1994, Torres assaulted appellant again.

On November 21, 1994, appellant left Minnesota for California, leaving her children in Minnesota. She came back to Minnesota on July 5, 1995.

On June 6, 1996, petitions for termination of parental rights were filed. On November 20, 1995, the district court issued an order terminating appellant's parental rights.

Appellant filed a pro se appeal. She requested appointment of an attorney and this court remanded the request to the district court, which appointed counsel for her. This court dismissed her appeal as untimely, but the supreme court reinstated the appeal and remanded to this court for consideration on the merits.

D E C I S I O N

A court may terminate all rights of a parent to a child if it finds one or more of the following conditions:

(1) That the parent has abandoned the child. Abandonment is presumed when:

(i) the parent has had no contact with the child on a regular basis and no demonstrated, consistent interest in the child's well-being for six months; and

(ii) the social service agency has made reasonable efforts to facilitate contact, unless the parent establishes that an extreme financial or physical hardship or treatment for mental disability or chemical dependency or other good cause prevented the parent from making contact with the child. This presumption does not apply to children whose custody has been determined under chapter 257 or 518. The court is not prohibited from finding abandonment in the absence of this presumption; or

(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 reasonable efforts by the social service agency have failed to correct the conditions that formed the basis of the petition; or

* * *

(8) That the child is neglected and in foster care.

Minn. Stat. § 260.221, subd. 1(b) (1994).

The district 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). The appellate court 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). 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).

I. Abandonment

The district court found that

3. There is clear and convincing evidence to support the presumption that Joy Torres has abandoned the above-named children pursuant to Minn. Stat. 260.221, subd. 1(b)(1)(i)(ii), in that she had no contact with the children on a regular basis and no demonstrated, consistent interest in the children's well-being from November 22, 1994 to July 5, 1995, which is more than six months, and that Douglas County Social Services made reasonable efforts to facilitate contact. The Respondent has failed to establish that an extreme financial or physical hardship or treatment for mental disability or chemical dependency or other good cause prevented her from making contact with the children.

4. There is insufficient evidence to show that the presumption of abandonment has been rebutted, therefore Joy has abandoned the children under Minn. Stat. 260.221, subd. 1(b)(1)(i)(ii).

5. There is clear and convincing evidence that even if there were no presumption of abandonment in this case, Joy has abandoned the children, and this Court is not precluded from finding abandonment in the absence of the presumption, pursuant to Minn. Stat. 260.221, subd. 1(b)(1)(ii).

Appellant does not dispute that she did not contact her children for 7 1/2 months, but claims that the fact that she had "frequent" contact with her attorney--contacting him within two weeks after leaving the state and every three or four weeks after that---"clearly demonstrated a consistent interest in the children's well-being" while she was gone from Minnesota. We conclude that this claim is not sufficient to reverse the juvenile court's finding on this issue.

Appellant argues that social services did not make reasonable efforts to facilitate contact. As the state properly notes, however, appellant put social services in a difficult position by leaving the state with no notice and without notifying them how she could be reached. When appellant did call them on April 10, she was correctly told that she must contact the guardian to request contact with her children. She was also asked to return to Minnesota.

Appellant argues that social services made no effort to pursue referring the children through the Interstate Compact so that the children could go to California for foster care and reunification. However, there was testimony that this was not a reasonable option because of appellant's history of instability and Torres's presence in California. The statute clearly does not require social services to pursue actions that would be contrary to the best interests of the children. Thus, we conclude that the juvenile court's finding that social services made reasonable efforts to facilitate contact is supported by substantial evidence.

Appellant claims that, even if the statutory requirements for a presumption of abandonment are met, physical hardship prevented her from making contact with the children. She claims that her relationship with Torres and her job search kept her from contacting her children. However, these difficulties apparently did not hamper her ability to contact her attorney. In addition, we believe that the legislature intended that there be a more severe hardship in order to justify a long period of not contacting one's own children.

Thus, we conclude that there was substantial evidence to support the district court's finding that appellant "abandoned" her children within the meaning of Minn. Stat. § 260.221, subd. 1(b)(i)(ii). Because of this determination, we need not address the other statutory bases for termination of parental rights.

Affirmed.

[ ]¹ Appellant has two other children who are not the subjects of this proceeding.