In the Matter of the Welfare of M.W.W., Child. [M.W., natural father, Appellant]

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA 
 IN COURT OF APPEALS 
 C6-96-17

In the Matter of the Welfare of M.W.W., Child.
[M.W., natural father, Appellant].

Filed August 6, 1996 
 Affirmed 
 Huspeni, Judge

Anoka County District Court
File No. J7-94-51159

Robert B. Varco, Berglund & Varco, Ltd., 2140 Fourth Avenue North, Anoka, MN 55303 (for appellant father)

Robert M. A. Johnson, Anoka County Attorney, Kathryn M. Timm, Assistant Anoka County Attorney, 2100 Third Avenue, Anoka, MN 55303 (for respondent Anoka County)

Craig D. Larson, 520 Jefferson Highway, Champlin, MN 55316 (for respondent guardian ad litem)

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

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

HUSPENI, Judge

Appellant father challenges the juvenile court's decision to terminate his parental rights on the grounds that he failed to contribute to child support without good cause, he was palpably unfit to be a parent, reasonable efforts failed to correct the conditions leading to his son's adjudication as a child in need of protection or services (CHIPS), and his son was neglected and in foster care. We affirm.

FACTS

Appellant's son, M.W.W., was born in November 1990, the same day that appellant pleaded guilty to third-degree sexual conduct based on his relationship with R.L.S., M.W.W.'s 14-year-old mother. The sentencing court stayed imposition of appellant's sentence and placed him on supervised probation that included an order restraining contact with R.L.S. In March 1991, a CHIPS petition was filed and R.L.S. and M.W.W. were placed in a group home. In July 1991, after R.L.S. violated the no-contact order, the juvenile court placed her in a girl's home and placed M.W.W. in foster care.

In May 1991, following M.W.W.'s CHIPS adjudication, appellant was permitted supervised visitation with his son provided that he complied with the conditions of the case plan designed by Anoka County Community Health and Social Services (Social Services). The plan required appellant to (1) complete a social history, (2) attend weekly therapy sessions, (3) undergo urinalysis (UA) testing, (4) abide by the no-contact order, and (5) participate in a parenting evaluation and follow the resulting recommendations. In December 1991, the court temporarily suspended appellant's visitation rights based on his failure to comply with those conditions.

In January 1992, appellant did complete the court-ordered evaluation with Dr. James Gilbertson who recommended that appellant undergo a professionally guided and coordinated therapeutic effort to make his personal life more ordered. In February 1992, however, appellant violated his probation by failing to attend out-patient counselling, failing to remain law-abiding, and failing to maintain contact with his probation officer. The juvenile court revoked the stay of imposition, imposed an 18-month sentence, stayed its execution, and ordered probation that included the completion of a short-term treatment program.

In December 1992, Social Services noted that appellant had failed to comply with several conditions contained in recent case plans by failing to (1) complete a Rule 25 evaluation, (2) submit to UA tests, (3) begin parenting classes, (4) start treatment at Alpha House, and (5) provide information to commence child support payments. Appellant attended the Alpha House program in December 1993. He was discharged due to his failure to meet his financial obligation there but completed his payments shortly thereafter.

In September 1993, the juvenile court revoked the stay of execution of appellant's sentence based on his violation of the conditions of probation. In April 1994, following R.L.S.'s voluntary termination of her parental rights, her guardian filed a petition for the termination of appellant's parental rights. After a hearing, the juvenile court found insufficient evidence to support two of the alleged statutory grounds for termination. Nevertheless, the court found by clear and convincing evidence that (1) appellant failed to contribute to M.W.W.'s support without good cause, (2) he is palpably unfit to be a parent, (3) reasonable efforts were made to correct the conditions leading to M.W.W.'s CHIPS adjudication, and (4) M.W.W. is neglected and in foster care. The court ordered the termination of appellant's parental rights in accordance with M.W.W.'s best interests.

D E C I S I O N

A natural parent is presumed to be a "fit and suitable person to be entrusted with the care of his child." In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). Thus, courts must "exercise great caution in [parental] termination proceedings, finding such action proper only when the evidence clearly mandates such a result in accordance with the statutory grounds." In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978). The best interest of the child is the paramount concern, particularly where the child has been in long-term foster care and attempts to reunite the family have failed repeatedly. In re Welfare of J.J.B, 390 N.W.2d 274, 279-80 (Minn. 1986). Another critical issue is whether a parent is presently able and willing to assume his responsibilities. In re Welfare of J.L.L., 396 N.W.2d 647, 651 (Minn. App. 1986).

On appeal, this court must consider whether the juvenile court's findings address the statutory criteria and whether those findings are supported by substantial evidence. In re M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). To terminate a parent's rights, the court need find only one of the grounds articulated in Minn. Stat. ' 260.221, subd. 1(b) (1994). In re Welfare of A.D., 535 N.W.2d 643, 650 (Minn. 1995). Here, the juvenile court found that clear and convincing evidence supported four of the six statutory grounds alleged in the termination petition.

A. Child Support

Appellant contends the juvenile court committed clear error in finding that he failed to contribute to the support of his son without good cause under Minn. Stat. ' 260.221, subd. 1(b)(3). The juvenile court stated that appellant had "evaded" paying his legal obligation due to his inability or refusal to maintain consistent employment. The juvenile court first ordered appellant to pay ongoing child support in the amount of $107 per month in February 1993. Orders in August 1993 and May 1995 increased appellant's monthly support obligations to $207 and then $213. As of May 1, 1995, appellant's payments totalled only $536.72 and that amount was paid through deductions from appellant's paychecks.

Appellant argues that he had good cause because (1) he had no source of income from September 1993 until June 1994 because he was in prison, (2) he provided whatever he could when he was not incarcerated, and (3) his frequent job changes were motivated by his desire to improve his situation. The court recognized appellant's period of incarceration and financial instability but emphasized his failure to make a payment on his own in light of the fact that his monthly obligation started at a reasonable, low level. Appellant provided no satisfactory explanation for his failure to take the initiative in paying support. Moreover, the guardian's testimony regarding appellant's difficulty in establishing a realistic budget indicates that he will not be able or willing to make payments in the near future. The record supports the juvenile court's determination that appellant failed to contribute to M.W.W.'s support without good cause.

B. Unfit Parent

Appellant contends the juvenile court erred in finding that he was palpably unfit as a parent, arguing that the state failed to establish the existence of

specific conditions directly relating to the parent and child relationship * * * that render[s] [appellant] unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of [M.W.W.].

Minn. Stat. ' 260.221, subd. 1(b)(4) (1994).

The juvenile court found that appellant's history of behavior establishes that he "cannot or will not take easy steps to avoid severe consequences such as prison, and, therefore, is not fit to raise a child." Appellant maintains that his failure to take steps to avoid prison is not directly relevant to his parenting ability. Appellant's probationary violations, however, greatly affected his relationship with M.W.W. by creating a nine-month period where appellant had no contact with his son, could not contribute to his son's support, and could not rebuild his life towards reunification with his son.

The court properly expressed concern with appellant's history of regular drug use. See In re Welfare of C.L.L., 310 N.W.2d 555 (Minn. 1981) (holding that alcoholism that interferes with a parent's long-term ability to provide a stable home or care for a child may justify termination). Although appellant denies using alcohol or drugs since December 1990, he repeatedly failed to give UA samples upon demand. Moreover, the testimony of medical experts indicates that he exhibits chemically dependent personality characteristics and vulnerability to drug or alcohol use.

The court also recognized appellant's failure to respond to Social Services' efforts, noting that he had never sustained any positive change and that he cannot even take care of his own needs. See In re Welfare of J.L.L., 396 N.W.2d at 652 (holding that father's minimal improvement and expressed desire to fulfill his parental responsibilities was insufficient to overcome past problems that made future performance as a parent uncertain). In challenging that determination, appellant relies on Dr. Susan Phipps-Yonas's 1992 report stating that he was cooperative, interacted well with M.W.W., and was starting to get his life together. She did, however, express concern about appellant's ability to follow through with his plans and later concluded that it was unlikely that he would be in a position to parent M.W.W. in the foreseeable future. Moreover, Dr. Hewitt, an expert testifying on behalf of the county, recommended terminating appellant's parental rights on the grounds that he did not display the desire or capacity to raise M.W.W., he was unlikely to be a good parent, and he was unlikely to provide a stable environment. Finally, Dr. Gilbertson reported that in December 1994 appellant was still making promises that he did not sustain. The record supports the juvenile court's determination that appellant does not currently possess the ability to parent M.W.W. and is unlikely to acquire that ability in the near future.

C. Efforts to Correct Conditions

Appellant challenges the juvenile court's finding that Social Services made reasonable efforts to reunite appellant and M.W.W. which justify the termination of his parental rights under Minn. Stat. ' 260.211, subd. 1(b)(5). Whether efforts were "reasonable" requires consideration of the length of time the county has been involved with the family as well as the quality of effort given. In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987). "Failure to cooperate with the rehabilitation plan supports the conclusion that the present conditions will continue for a prolonged, indeterminate period." In re Welfare of J.S., 470 N.W.2d 697, 703 (Minn. App. 1991), review denied (Minn. July 24, 1991).

Appellant argues that the evidence indicates that Social Services and R.L.S.'s guardian decided early in the proceedings to terminate appellant's parental rights. We disagree. The county became involved in working with appellant four years before the hearing on the petition to terminate parental rights. The nine placement plans offered as exhibits constitute evidence of the agency's efforts. See In re Welfare of M.G., 407 N.W.2d at 122 (holding that appellant's unwillingness to cooperate with rehabilitation plans supports the conclusion that the present neglectful conditions will continue for a prolonged indeterminate period). Although early rehabilitation efforts focused on R.L.S., later plans required Social Services to focus on the conditions placed on appellant. The plans detail Social Services' attempts to involve appellant (1) in sex offender treatment, (2) in individual therapy, (3) in submitting to UAs, and (4) in establishing a bond with his son.

Appellant disputes the juvenile court's conclusion that Social Services made appropriate therapists available to him. He failed to show up after two appointments with one therapist, but argues that that therapist did not have the skills necessary to deal with his problems. Dr. Gilbertson, however, testified that appellant has a cyclothymic disorder, which the therapist was qualified to treat. Moreover, other expert testimony suggested that appellant has an even more severe personality disorder that would prevent him from obtaining appropriate parenting skills for the foreseeable future. See In re Welfare of J.D.L., 522 N.W.2d 364, 369 (Minn. App. 1994) (rejecting father's argument that his past derelictions are remediable, because father's profile suggests a significant psychopathology that could not be expected to improve as time passed). The record supports the juvenile court's determination that Social Services made reasonable efforts to reunite appellant and his son.

D. Neglected and in Foster Care

Finally, appellant argues that M.W.W. is not "neglected and in foster care" pursuant to Minn. Stat. ' 260.221, subd. 1(b)(8) (1994). Factors the court should consider in determining whether a child is "neglected and in foster care" include: (1) the length of time the child has been in foster care, (2) the parent's efforts to adjust the conditions that necessitated the child's removal, (3) the parent's visitation with the child within the three months preceding the filing of the petition, (4) the maintenance of regular communication with Social Services, (5) the adequacy of services offered to the parent to facilitate a reunion, (6) whether additional services would be likely to cause lasting parental adjustment and whether such services were offered, and (7) the nature and reasonableness of the efforts Social Services made to reunite the family. Minn. Stat. ' 260.155, subd. 7 (1994); see also Minn. Stat. ' 260.015, subd. 18 (1994) (defining "neglected and in foster care"). The juvenile court need not make specific references to each of the statutory factors so long as the court's findings demonstrate the existence of many of the factors and provide clear and convincing evidence of the standard for termination. In re Welfare of A.D., 535 N.W.2d at 649.

In applying the statutory factors, the juvenile court noted that (1) M.W.W. had been in foster care for over four years, (2) Social Services designed several case plans with the requirements necessary to reunite appellant with his son and provided him with the necessary tools, (3) Social Services made reasonable efforts to assist appellant to comply and to form a meaningful relationship with his son, (4) Social Services attempted to use visitation privileges to induce appellant to comply, (5) appellant resisted Social Services' efforts and made excuses to avoid case plan requirements, (6) appellant failed to maintain regular contact with Social Services while he was in prison and did not contact his caseworker immediately upon his release, and (7) appellant's promise to comply with future plans is not convincing in light of his history of making promises that he cannot or will not keep.

Appellant claims that it is not clear that the condition causing the initial neglect will continue because Dr. Gilbertson testified that a therapeutic plan could be developed to deal with his problems. He also claims to have obtained stable employment. Nevertheless, appellant's frequent broken promises and failure to take advantage of numerous opportunities to demonstrate positive steps toward becoming a fit parent support the juvenile court's determination that M.W.W. is neglected and in foster care.

Termination of parental rights may not occur unless there is clear and convincing evidence that satisfies the requirements of one of the statutory grounds for such action. In this case, the court found clear and convincing evidence that satisfied four of those grounds. We find no error in the juvenile court's determination.

Affirmed.