Kevin D. Vinnes, Vinnes & Peterson, P.L.L.P., 2212 S.W. Second St., Rochester, MN 55902 (for appellant mother S.F.)

Raymond F. Schmitz, Olmsted County Attorney, Susan Mundahl, Asst. County Attorney, 151 Fourth St. S.E., Rochester, MN 55904 (for respondent Olmsted County Department of Social Services)

Kimball Orwoll, Riverside Building, Suite 11, 400 S. Broadway, Rochester, MN 55904 (for respondent guardian ad litem)

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.

Appellant challenges the termination of her parental rights to her two minor children, arguing that the trial court erred in determining (1) that neither appellant's mental illness nor her physically abusive relationship with the children's father required a relaxed application of the termination statute, (2) that reasonable efforts were made by county personnel to unify the family, and (3) that certain challenged testimony was admissible. Because we conclude that none of the trial court's rulings was erroneous, we affirm.

During and after 1990, County personnel had continuing concerns regarding appellant's ability to care for her minor children, because they were often unsupervised while at play outside their home and had suffered injuries for which appellant had no adequate explanation. Appellant frequently boycotted or refused services offered to her by the County.[2]

By the time a CHIPS petition was filed regarding both children in 1994, (a) a restraining order had been issued; (b) appellant had violated the portion of the restraining order prohibiting contact between herself and the children's father, D.L., by continuing a relationship with him; (c) appellant had violated the portion of the restraining order prohibiting contact between D.L. and the children by temporarily placing one of the children with D.L.; (d) an evaluation stated that the child placed with D.L. was acutely traumatized and given to delusional activity; (e) both children had been placed in foster care; and (f) appellant had refused to cooperate with services provided by the County and had substantially ceased her involvement in county programs.

Appellant and D.L. admitted that their children were in need of protection and services. A case plan was approved by the court in November 1994, under which D.F. remained in foster care and C.F. remained in the custody of appellant. When appellant subsequently refused to permit County personnel to enter her home to confirm C.F.'s well-being and refused County involvement with C.F.'s educational plan and progress, C.F. was placed in foster care.

A psychological assessment of appellant indicated she had a general anxiety disorder, an inappropriate relationship with the children's father,[3] and that effective treatment of appellant's condition would require "long-term care." The County again offered appellant various services. After appellant again refused and ceased any further visitation with the children, a petition to terminate parental rights was filed.

At the hearing on termination of parental rights, the testimony of appellant's oldest daughter, S., was admitted. S. was removed from her mother's custody in late 1991. She testified to her mother's lack of attentiveness towards herself and the other children prior to that time.

The trial court concluded that clear and convincing evidence supported termination of appellant's parental rights pursuant to Minn. Stat. § 260.221, subd. 1(b)(1), (2), (4), (5), (8) (1996).[4] Appellant does not challenge on appeal the sufficiency of the evidence to sustain termination of her parental rights. She does allege, however, that her mental illness and her physically abusive relationship with D.L. should excuse her noncompliance with parenting requirements. She also alleges that the County did not provide reasonable services and that she was deprived of a fair trial due to admission of improper testimony.

The court must find by clear and convincing evidence that at least one of the statutory bases for termination exists. Minn. Stat. § 260.221, subd. 1(b) (1996). In this case, the trial court concluded that five separate statutory bases were met.

1. Mental Illness and Abuse.

Appellant argues first that her mental condition requires a relaxed application of the termination of parental rights statute. See Minn. Stat. § 260.221, subd. 1(b) (listing grounds for termination). We cannot agree. While mental illness, in and of itself, cannot justify termination of parental rights, neither can mental illness be raised as an absolute bar to such termination. If a mental illness renders a parent "permanently unable" to care for a child, parental rights "are to be terminated." In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996); see In re Welfare of J.J.B., 390 N.W.2d 274, 281 (Minn. 1986) (if a mental illness or other mental or emotional disability precludes a parent from properly caring for a child and defeats all reasonable efforts to make the parent able to care for the child, parental rights may be terminated). Even in the presence of mental illness, the court must determine whether the actual conduct of a parent was detrimental to the child's physical or mental health or welfare and whether the parent is unable to maintain the parental relationship with the child. In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978).

Here the record shows that appellant suffers from generalized anxiety disorder and other personality problems, resulting in her inability to give adequate care and nurture to her children. She has neglected their day-to-day needs and has abandoned any contact with them for extensive periods of time. This conduct has had a profound and negative effect on the children's mental and emotional well-being and is considered by the court in determining whether statutory requirements for termination of parental rights have been met.

Of critical importance, also, is expert testimony at trial indicating that appellant's inability to assume her parental role is at best long-term and may be permanent.[5] See In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). Case law recognizes the importance of considering the best interests of minor children in a termination of parental rights matter. M.D.O., 462 N.W.2d at 375. Clearly, a child's need for a permanent and stable environment is a critical factor in seeking his or her best interests. Any uncertainty as to when, if ever, a parent would be able to assume a parenting role, undermines the child's need for security and stability.

Appellant next argues that the abuse she suffered from D.L. provides a basis for a relaxed application of Minn. Stat. § 260.221, subd. 1(b). Appellant cites no case law to support her argument, and our research has failed to reveal any. While it seems reasonable to conclude that being a victim of physical abuse could no more be the sole basis for terminating parental rights than could mental illness, any analysis must turn on the actual conduct of the parent that affects the children.

Testimony at trial confirmed that appellant's conduct was detrimental to the health and welfare of the children. Her decision to leave D.F. in the care of his father, despite a restraining order forbidding any contact between them, is illustrative of detrimental conduct. These inappropriate contacts were traumatic to D.F. Further, testimony indicated that appellant's explosive, volatile, and prolonged relationship with D.L. took precedence over her attempts to care for the minor children adequately. Appellant's willingness to continue in an abusive relationship and to give it first priority is conduct relevant to a termination of parental rights proceeding. While neither appellant's mental illness nor her physical abuse by the children's father provides an exclusive basis for terminating her parental rights, neither provides an excuse for her failure to meet her parental obligations.

2. Reasonable Efforts.

Appellant also argues that the County failed to make reasonable efforts to reunify her with her children. We note initially that the nature of the services that constitute "reasonable efforts" depends on the problems presented. S.Z., 547 N.W.2d at 892. To measure the adequacy of services, it is necessary to learn whether the services go beyond mere matters of form, such as the scheduling of appointments, or whether they include genuine help to see that all things are done that might conceivably improve the circumstances of the parent and the relationship of the parent with the child. In re Welfare of White, 363 N.W.2d 79, 80-81 (Minn. App. 1985). The best interests of the child are not served by delay that precludes the child's establishment of parental bonds with either the natural or the adoptive parents for the foreseeable future. S.Z., 547 N.W.2d at 893.

Appellant claims that the case plan here was flawed and placed such unfair expectations on her that it was inevitable that she would fail. We cannot agree with appellant's assessment. The record shows that a number of different programs were made available to appellant to improve her parenting skills and to aid her in dealing with her mental health problems. The County's plan was geared towards improving appellant's ability to be a good parent despite her mental disability. Therefore, the plan appears to have been reasonably directed to correcting the issues that led to the termination of parental rights and to reuniting appellant with her family. See S.Z., 547 N.W.2d at 892-93 (holding that agency's action to provide health services to parent constituted "reasonable efforts" toward rehabilitating parent and reuniting family because services were related to improving parent's ability to function as a parent).

The case plan was ineffective primarily because appellant refused to cooperate. In almost all instances she quit programs prior to finishing. It was appellant's decision to refuse to take part in programs, not the County's failure to exert reasonable efforts to reunite appellant with her family, that prevented appellant from meeting the goals of the case plan. The trial court's conclusion regarding the good faith effort of the County is amply supported by the record.

3. Challenged Testimony.

Finally, appellant argues that the trial court deprived her of a fair trial when it admitted irrelevant and prejudicial testimony. We conclude that the challenged testimony was properly admitted.

Evidentiary rulings on materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are committed to the sound discretion of the trial court and will only be the basis for reversal where that discretion has been clearly abused. In re Welfare of C. Children, 348 N.W.2d 94, 97 (Minn. App. 1984). Evidence should be admitted unless its probative value is substantially outweighed by countervailing considerations of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. Minn. R. Evid. 403. Admission of testimony concerning allegations of abuse that are merely cumulative, however, is not prejudicial. State v. Stacey, 359 N.W.2d 671, 672 (Minn. App. 1984).

The contested testimony addressed what S. alleged were appellant's deficiencies as a parent. Because much of the other evidence presented to the district court was both similar and more recent, we cannot say that any error in admitting the testimony requires a reversal. See In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (affirming termination of parental rights noting that because evidence which was allegedly erroneously admitted was "merely cumulative[,]" admission of the evidence "was not prejudicial"), review denied (Minn. Mar. 29, 1995).

While appellant also argues that the testimony of S. was stale, we conclude that in the context of a termination of parental rights proceeding, such an argument might be more relevant to the weight given to that testimony than to its admissibility. Further, because of the cumulative nature of S.'s testimony and presence of more recent testimony on this issue, any error in admitting the testimony of S. would not require reversal.

Affirmed.

[ ]¹These services were provided for D.F., a developmentally disabled child who had been injured when struck by a car.

[ ]²These services included respite foster care, day care, waivered services, specific parenting education, and family and individual counseling.

[ ]³Appellant's relationship with D.L. was described after evaluation as "extremely volatile."

[ ]⁴The trial court found, in part:

[Appellant] failed or refused to complete the case plan, failed or refused to work toward improving her parenting skills, failed or refused to cooperate in reestablishing and maintaining an appropriate parental relationship with her children, whether or not in her custody, and failed or refused to complete recommended and offered counseling services.

* * * *

That [appellant] has been persistently unable or unwilling to make changes in herself, even to the point of seeking to arrange visits with [D.F. or C.F.].

* * * *

That despite reasonable efforts made by [County] to reunite [D.F. or C.F.] with [appellant, appellant] has failed or refused to adopt and follow through with case plans to completion; and, that there is no basis on which to conclude that [appellant] will ever become an adequate parent to [D.F. or C.F.].

[ ]⁵James Alsdurf, Ph.D., testified "I would be very, very hesitant to believe that [appellant] would ever reach a point where she could effectively serve as a primary parent to [D.F. and C.F.]."