William McGee, Hennepin County Public Defender, Renee Bergeron, Assistant Public Defender, 317 Second Ave. S., Suite 200, Minneapolis, MN 55401-0809 (for appellant Frances Michaud)

Michael O. Freeman, Hennepin County Attorney, Andrew J. Mitchell, Assistant County Attorney, Health Services Bldg., 525 Portland Ave., Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Department of Children and Family Services)

Michael J. Biglow, 839 Midland Bank Bldg., 401 Second Ave. S., Minneapolis, MN 55401 (for guardian ad litem)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mansur, Judge.[*]

Appellant argues that the trial court erred in terminating her parental rights. Because the evidence supports the trial court's finding that termination is in the children's best interests, we affirm.

On August 21, 1995, the court terminated appellant's parental rights, but stayed the order for two consecutive 90-day periods. The court agreed not to enter the termination order if appellant substantially complied with a case plan developed by Family Services and improved her parenting abilities. The court cautioned appellant, however, that compliance with her case plan might not be enough to satisfy the needs of her children. In such a case, the court would lift the stay and terminate her parental rights. The Family Services case plan required appellant to: (1) continue therapy, take all prescribed medication, and follow all doctor recommendations; (2) refrain from alcohol and illegal drugs, provide urine analyses, and attend weekly Alcoholics Anonymous or Narcotics Anonymous groups; (3) obtain stable housing and complete a transitional housing program, including learning parenting skills; and (4) attend all her children's medical and therapy appointments with her children.

After the first 90-day stay, all the parties agreed that appellant had substantially complied with her case plan and the stay of termination was continued for another 90 days. On January 4, 1996, 45 days later, Family Services acknowledged that appellant was in "full compliance" with her case plan, but neither Family Services nor the guardian ad litem believed appellant would be capable of living independently and parenting her children at the end of the remaining 45 days. Therefore, the guardian ad litem moved to lift the stay and terminate appellant's parental rights.

Following a contested hearing, the trial court found that appellant would not be able to live independently and parent her children in the foreseeable future, and that placement in permanent foster care was in the best interests of the children.

On October 23, 1996, the trial court, observing that its first order was invalid because the permanency statute does not now allow children under 12 years of age to be placed in long-term foster care, reversed its order. The court terminated appellant's parental rights under Minn. Stat. § 260.221, subd. 1(b), based on its finding that: (1) appellant has not obtained safe, stable, drug-free housing; (2) appellant was "palpably unfit" to be a party to the parent-child relationship; (3) appellant had not demonstrated that she could execute the duties imposed on her by the parent-child relationship; and (4) each of the children was neglected and in foster care.

This court's standard of appellate review is well defined:

The appellate court must determine whether the trial 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). Parental rights may be terminated only if the party pursuing termination demonstrates with "clear and convincing evidence that a specific statutory ground for termination exists." In re Welfare of M.J.L., 407 N.W.2d 714, 718 (Minn. App. 1987).

A court may terminate parental rights pursuant to Minn. Stat. § 260.221, subd. 1(b) (1996), upon finding:

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

* * *

(4) That a parent is palpably unfit to be a party to the parent and child relationship * * * ; or

* * *

(8) That the [children are] neglected and in foster care.

Appellant argues that the termination of her parental rights is improper because the termination is not in the children's best interests. See In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996) (child's best interests is paramount consideration in termination of parental rights). Appellant observes that the trial court initially found that termination was not in the children's best interests, but terminated appellant's rights nonetheless because the permanency statute, Minn. Stat. § 260.191, subd. 3b, does not allow the trial court to place the children--all under 12 years of age--in long-term foster care. The trial court acted pursuant to the law because the statute requires that a court make a permanent placement determination for all children who have been in court-ordered out-of-home placement for a year. A court may order permanent placement by: (1) transferring legal and physical custody to a relative; (2) terminating parental rights and placing for adoption; or (3) ordering placement into long-term foster care. Minn. Stat. § 260.191, subd. 3b. In this case, there is no relative requesting custody, and long-term foster care is not a possibility because all the children are under age 12. Therefore, the trial court properly concluded its only alternative was to terminate appellant's parental rights and place the children for adoption.

Appellant contends that a conflict exists between the permanency statute's 12 years of age restriction on foster care and the more general requirement of the best interests of the child. Generally speaking, specific provisions of an act prevail over general provisions. Minn. Stat. § 645.26 (1996). In addition, this court has recognized that the permanency statute limits may conflict with compelling evidence in a termination case that long-term foster care serves the children's best interests. In re Welfare of A.J.C., 556 N.W.2d 616, 620 n.1 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997). Evidence that would favor long-term foster care may include "a showing that the children benefited by visitation rights of their mother or that there were special reasons to protect their relationship with a sibling." Id. at 621. Here, however, appellant made no showing that her children would benefit by continuing visitation rights with her or that there is a special relationship among the children. Therefore, this conflict does not arise because the record does not show a compelling reason for long-term foster care. Id. at 621-22 n.1.

In very thorough findings, the trial court weighed the best interests of the children and concluded that, due to the children's ages, the termination of appellant's parental rights was appropriate. The court made findings regarding appellant's admitted chemical dependency and mental illness, the prolonged unification effort, appellant's inability to assume the duties and responsibilities of the parent-child relationship in an independent living situation, and the children's special needs. The record supports the finding that all the children are under the age necessary for allowable long-term foster care.

B. Sufficiency of the Findings

Appellant argues that the trial court's best-interest analysis is incomplete because it lacks sufficient findings. First, appellant argues that the trial court's findings failed to address specifically the likelihood that J.M. or her two brothers would ever be adopted, especially in light of J.M.'s and M.M.'s special needs. See M.D.O., 462 N.W.2d at 379 (suggesting consideration of "the likelihood of adoption" when addressing child's best interests).

With respect to adoptability, the trial court found that J.M. "continues to have special needs," that "Petitioner has expressed concerns about its ability to find adoptive placements for [appellant's two sons]," and that M.M. "continues to have special needs." At trial, the child protection worker testified that, although it would take a special family to meet J.M.'s needs, he thought there were resources that could place her. The worker further testified that he did not believe that there was "an unadoptable child" and that there was a possibility that all three children would be placed together in an adoptive home. The trial court's findings on the children's adoptability are supported by substantial evidence and are not clearly erroneous. Furthermore, absent proof of impossibility of adoption (as in M.P., 542 N.W.2d at 75-76, where a 15-year-old child, whose consent is statutorily required, refused to agree to be adopted), this court must presume the adoptability of J.M., J.M., and M.M.

Second, appellant argues that the trial court's best-interests analysis is incomplete because its findings fail to address the children's best interests in retaining their relationship with appellant and with each other. See Minn. Stat. § 260.191, subd. 3b(c) (1996) (stating that court must review relationship between child and relatives in determining child's best interests).

The trial court acknowledged the relationship between appellant and her children, finding that appellant had a "fairly regular[]" visitation schedule with her children. According to testimony by the guardian ad litem, however, there was little interaction between appellant and her children during these visits and the children often appeared guarded and afraid. The trial court also found that reunification of appellant with her children was not in the children's best interests. In light of the children's ages and the lack of relatives, this finding is sufficient, under the permanency statute, to justify termination of appellant's parental rights.

As to the relationship between appellant and J.M., the trial court stated:

[J.M.'s] therapist * * * strongly urges that Respondent Mother continue to participate in [J.M.'s] life, though not as the primary caretaker of the child.

The trial court properly considered this recommendation in evaluating the children's best interests but correctly found the recommendation to be trumped by the permanency statute. See Minn. Stat. § 260.191, subd. 3b(c) (court may order long-term foster care only if child has reached age 12).

As to the relationship among the children, the evidence shows appellant's daughter had little or no relationship with her brothers because she was placed in a different foster home. As the dissent observes, the brothers did reside in foster care together and therefore arguably had a significant relationship. Nonetheless, the trial court's failure to make a finding on this issue does not outweigh the evidence showing that termination of appellant's parental rights is in the children's best interests.[1] The record demonstrates that appellant has continuously and repeatedly refused to comply with the duties imposed on her by the parent-child relationship and that she is palpably unfit to be a party to the parent-child relationship. Therefore, the trial court did not err in terminating appellant's parental rights.

Affirmed.

NORTON, Judge (dissenting).

I respectfully dissent. In affirming the trial court, the majority states that the lack of a finding regarding the relationship between appellant's sons is not dispositive due to abundant evidence showing that termination of appellant's parental rights was in the children's best interests. Notwithstanding the evidence to which the majority refers, Minnesota law affirmatively requires the court to make a finding regarding the relationship of appellant's sons:

In ordering a permanent placement of a child, the court must be governed by the best interests of the child, including a review of the relationship between the child and relatives and the child and other important persons with whom the child has resided or had significant contact.

Minn. Stat. § 260.191, subd. 3b(c) (1996) (emphasis added). In this case, the evidence demonstrated that appellant's sons had lived together in the same foster home for some time. This fact implies that the only continuity and stability the boys have had is their relationship with each other. Given that the boys will lose their relationship with their mother as a result of the termination of her parental rights, I consider it imperative the boys' relationship be considered. Moreover, Minn. Stat. § 260.191, subd. 3b(c) requires the court to consider their relationship. For these reasons, I would remand to the trial court for findings on appellant's sons' relationship.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ The best chance to preserve the relationship between the boys may, perhaps, be through joint adoption.