Margaret L. Burns, n/k/a Margaret Lynch, petitioner, Respondent, vs. Harry E. Burns, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-1977

In the Matter of the Welfare

of: A.G.

Filed April 28, 1998

Affirmed

Willis, Judge

Dakota County District Court

File No. JX9756643

David L. Warg, O'Connell, Wermager & Warg, 906 Vermillion Street, St. Paul, MN 55033 (for appellants S.G. and C.B.)

James C. Backstrom, Dakota County Attorney, Pauline M. Halpenny, Assistant County Attorney, 1560 W. Highway 55, Hastings, MN 55033 (for respondent)

David A. Jaehne, 60 East Marie, Suite 109, West St. Paul, MN 55118 (for A.G. and guardian ad litem)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

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

WILLIS, Judge

Appellants challenge the district court's termination of their parental rights. We affirm.

FACTS

In October 1995, 18-year-old C.B. contacted Dakota County Community Services (DCCS) regarding options for placing her then-unborn child for adoption. On November 10, 1995, C.B. gave birth to a son, A.G. At the hospital, the child's father, 37-year-old S.G., demanded that C.B. keep the baby and threatened to abscond with A.G. if adoption were pursued. On November 14, A.G. was placed in temporary foster care through Catholic Charities.

S.G. had been orphaned at the age of six months and lived in 52 foster homes, some of them abusive, before his adoption at age 13. At age 15, he attacked a fellow student with a knife and was placed in institutional care. After serving in Vietnam, he married and had two children, but his wife divorced him due to alcohol- and drug-related domestic abuse; he has not seen or contributed to the support of the children since. S.G. drifted from job to job and lived in the Veterans Home in Hastings before marrying again in 1992. He was still married to his second wife, although separated, when he first met C.B., then a high-school student, in February 1995.

C.B. was sexually abused repeatedly by a male cousin when she was between the ages of 5 and 15. She has received psychiatric counseling of various types since 1992, but psychologists appear unable to agree on a diagnosis. C.B. has reported experiencing blackouts and delusions. She graduated from high school but apparently has never held a job for longer than a month.

On December 29, 1995, DCCS returned A.G. to C.B., who was then living with her parents in Hastings and had still not decided whether to place A.G. for adoption. One week later, C.B. entered into a Temporary Custody Agreement with DCCS, which again placed A.G. in foster care. During January and February 1996, C.B. again expressed interest in placing A.G. for adoption, but in February she changed her mind and told DCCS that she and S.G. planned to move to Goodhue County in March. When the move did not occur, DCCS put together a reunification plan providing for weekly visits. C.B. and S.G. visited A.G. three times in April 1996 and once in May. On May 29, DCCS filed a CHIPS petition based on the lack of visitation and on concerns regarding both parents' mental health.

In March 1996, S.G. was evicted from the Veterans Home, and he and C.B. moved in with the first of two sets of friends. In August, they lost the second of these housing arrangements, and C.B. moved back in with her parents. Because C.B.'s parents would not allow him in the house, S.G. lived out of a friend's car parked in C.B.'s parents' driveway until November, when C.B.'s parents allowed him into the home temporarily. Since August 1996, C.B. appears to have stayed with her parents while S.G. has migrated among numerous shared or substandard living arrangements. In November 1996, DCCS paid more than $1,000 to retrieve S.G.'s car from impoundment, but the car was impounded again shortly thereafter. Both C.B. and S.G. obtained and lost numerous jobs following A.G.'s birth; C.B. had no other source of income, while S.G. relied on a $174 monthly veteran's pension.

C.B. and S.G. entered a general admission to the CHIPS petition in July 1996. The court ordered weekly supervised visitation, attendance at parenting classes, and psychological and parenting evaluations for both parents. Both C.B. and S.G. regularly attended parenting classes, but neither completed the evaluations until 1997.

Visitation was initially sporadic but became more regular in 1997. Some of the visits were supervised by A.G.'s foster mother and others by Nancy Kankel, the instructor of the parenting classes. The foster mother reported that C.B. often appeared passive and apathetic, while S.G. encouraged A.G. to hit or kick C.B. Kankel reported that it was only after numerous visits that C.B. and S.G. remembered, without prompting, to take steps such as putting a bib on A.G. and changing his diaper. Kankel also reported that C.B. and S.G. failed to take such safety measures as holding A.G.'s hand while walking through a restaurant parking lot. Kankel reported that C.B. and S.G. slapped and threw food at one another during visits and, when told that A.G. did the same thing after returning to his foster home, they failed to recognize any connection between A.G.'s behavior and their own. Kankel also reported that C.B. and S.G. on several occasions brought friends along on visits because it was "boring" without them, and that when these friends were present, C.B. and S.G. tended to interact with the friends rather than with A.G. C.B. and S.G. also frequently concluded the visits early.

The parenting and psychological evaluations were conducted by Dr. Susan Lund in February 1997; two further evaluations of C.B. were completed in the spring. Based on lengthy interviews and various psychological tests, Lund concluded that S.G. is an alcoholic, has a personality disorder and unrealistic expectations of both A.G. and himself, and is overly willing to resort to physical discipline. Lund concluded that C.B. suffered from post-traumatic stress disorder and possibly a personality or psychotic disorder and shows difficulty forming close attachments and little empathy or bonding with A.G. Lund wrote to the court that she did not feel that either C.B. or S.G. would benefit from further therapy because both appeared unwilling to admit to their psychological problems.

On April 9, 1997, DCCS filed a petition to terminate C.B.'s and S.G.'s parental rights. The CHIPS permanency hearing was continued pending the outcome of the termination petition; DCCS continued to supervise visits. S.G. began living and working at an adult group home in Hastings in May 1997 and apparently remained there as of August 1997. C.B. and S.G. waived an evidentiary hearing but submitted affidavits: S.G.'s affidavit emphasized his desire to parent A.G., while C.B.'s argued that Kankel had misstated facts in her account of the visitation.

On September 23, 1997, the district court granted the petition to terminate C.B.'s and S.G.'s parental rights. The court made 59 findings of fact and determined that the credibility of S.G.'s and C.B.'s statements was "questionable" in view of their inability to "recognize their own limitations." The court concluded that A.G. needed to be placed for adoption to allow him an opportunity to bond with a parent before he reached age three and that, although C.B. and S.G. meant well, the limited progress they had made to date indicated that it would be a long time before they became able to parent A.G., if they ever did. The parents appeal; we affirm.

D E C I S I O N

In reviewing a termination of parental rights, this court must determine (1) whether the district court's findings "address the statutory criteria," (2) "whether those findings are supported by substantial evidence," and (3) "whether those findings are clearly erroneous." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). This standard is "something of a hybrid" because, although findings will be upheld unless clearly erroneous, this court exercises "great caution" in ensuring that the evidence "clearly mandates" termination. In re Welfare of T.M.D., 374 N.W.2d 206, 211 (Minn. App. 1985) (quoting In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978)), review denied (Minn. Nov. 25, 1985). As a matter of Fourteenth Amendment due process, the state must prove the grounds for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 768-69, 102 S. Ct. 1388, 1402-03 (1982).

The juvenile court may * * * terminate all rights of a parent to a child * * * if it finds that one or more of the following conditions exist:

* * * *

(4) that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of * * * specific conditions directly relating to the parent and child relationship [which is] determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child. * * *

(5) that following upon a determination of neglect or dependency, or of a child's need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination. * * *

Minn. Stat. § 260.221, subd. 1 (Supp. 1997). The district court specifically found that both of these criteria were met. S.G. and C.B. challenge the sufficiency of the evidence in support of these findings.

Palpable unfitness

In a termination proceeding for palpable unfitness under section 260.221, subdivision 1(4), the state must prove

(1) a consistent pattern of * * * specific conditions, (2) directly relating to the parent and child relationship, (3) of a duration or nature that renders the parent unable to care appropriately for the needs of the child, (4) for the reasonably foreseeable future.

In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). The evidence must address conditions that exist at the time of the hearing, and the court must rely "not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child." Id. (quoting In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995); internal quotes omitted).

Conditions resulting solely from parents' poverty cannot constitute palpable unfitness. In re Welfare of K.P.C., 366 N.W.2d 711, 714 (Minn. App. 1985). A parent's mental illness is likewise insufficient in and of itself. Kidd, 261 N.W.2d at 835. But a mental health condition may support termination if it renders the parent unable to recognize the child's needs and limitations or to perform "mechanical functions of a parent." In re Welfare of N.C.K., 411 N.W.2d 577, 580 (Minn. App. 1987). The county need not demonstrate actual harm to the child; a showing of conduct likely to be detrimental to the child's physical or mental health is sufficient. Kidd, 261 N.W.2d at 836 (discussing earlier version of statute). "If [a parent] cannot care for himself on a sustained basis, it follows that he cannot care for a child." S.Z., 547 N.W.2d at 894.

Where a parent has had relatively little contact with a child on which a court can base a finding regarding fitness, this court has affirmed a termination of parental rights on the ground of palpable unfitness based primarily on the results of a psychological examination. See In re Welfare of B.M., 383 N.W.2d 704, 707-08 (Minn. App. 1986) (affirming termination of parental rights where mother's mental illness permanently impaired her parenting abilities and psychological evaluation of father indicated his unfitness to parent), review denied (Minn. May 22, 1986). Courts have also upheld findings of palpable unfitness where a willing parent lacked the capacity to learn necessary parenting skills. See In re Welfare of P.J.K., 369 N.W.2d 286, 290-91 (Minn. 1985) (affirming termination where mentally retarded father could not understand concepts taught in parenting classes and lacked skills to care for sons who were also mentally retarded).

Here, the district court appears to have accepted the county's conclusion that the parents' poverty resulted primarily from their mental impairments. The record shows that C.B. and S.G. both were able to obtain employment, but not to maintain it. Kankel's records from visitation and parenting classes show that S.G., while interested in raising a child, has difficulty understanding A.G.'s needs or absorbing parenting lessons. C.B., conversely, was more able to assimilate Kankel's lessons but appeared apathetic and unable to bond. Lund corroborated these observations. Thus, the record contains evidence to support a finding of a consistent, specific condition (mental impairment) that relates to the parent-child relationship by rendering both parents unable to meet a child's physical needs, as demonstrated by their inability to meet their own, and by rendering one parent unable to understand A.G.'s needs and the other unable to bond with him.[1]

Where a termination is based on palpable unfitness, the central question is whether the condition "will continue for a prolonged, indeterminate period." In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). The county must prove not only its inability to rehabilitate the parents but also that failure to remedy existing conditions would be permanently detrimental to the child's welfare. M.D.O., 462 N.W.2d at 378.

The best interests of the child are "paramount" in termination proceedings. Minn. Stat. § 260.221, subd. 4 (1996). It is detrimental to a child's best interests to preclude the formation of parental bonds with either a biological parent or an adoptive parent. Kidd, 261 N.W.2d at 836. A child's best interests standing alone cannot support termination. In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985); see also Minn. Stat. § 260.221, subd. 4 (stating that child's best interests are paramount provided that statutory criteria are present). But best interests considerations dictate that "the reasonably foreseeable future" is a shorter time where the child involved is very young and still able to bond effectively with an adoptive parent. See In re Welfare of M.P., 542 N.W.2d 71, 76 (Minn. App. 1996) ("[a] prospective consideration of a child's best interests necessarily requires consideration of the chance for a child's adoption").

Lund concluded that neither parent's psychological condition was likely to improve in the foreseeable future and that she could think of no services that would benefit either parent, in part because neither parent would admit to having a problem. "[O]n appeal `this court must defer to the trial court's assessment of credibility of witnesses and the weight to be given to their testimony.'" In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (quoting General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987)). The standard of review remains the same even if the findings are based on documentary rather than oral evidence. In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (citing Minn. R. Civ. P. 52.01). Lund's conclusion with regard to S.G. is also supported by the duration of his condition. Cf. J.J.B., 390 N.W.2d at 281 (mother had been treated for mental illness for 20 years). C.B.'s five years of psychiatric treatment are substantial in view of her age, and after discontinuing treatment shortly before A.G.'s birth, she failed to resume it despite court orders.

The record shows that C.B. and S.G. demonstrated some improvement in their parenting skills over the two years that A.G. remained in foster care. But this improvement was very slow; after two years, Kankel still felt that unsupervised visitation would not be safe. The courts have repeatedly affirmed terminations of parental rights where conditions improved, but only partially, belatedly, or excessively slowly. See, e.g., B.M., 383 N.W.2d at 708 (finding "some" progress insufficient); J.K., 374 N.W.2d at 466 (declining to hold findings clearly erroneous where evidence indicated improvement immediately prior to termination hearing).

Moreover, "[f]ailure 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). While C.B. and S.G. participated in parenting classes regularly and in visitation with increasing regularity, they failed to obtain ordered psychiatric evaluations for six months. Cf. In re Welfare of M.G., 407 N.W.2d 118, 121-22 (Minn. App. 1987) (affirming termination where father complied with some reunification requirements but not others and made no attempt to obtain court-ordered counseling for six months, until eve of hearing).

In addition to supporting a finding of continuing palpable unfitness under section 260.221, subdivision 1(4), C.B.'s and S.G.'s failure to seek help for the mental health conditions that gave rise to A.G.'s foster care placement helps to establish one element of subdivision 1(5): the failure to improve conditions. Only one statutory basis need be proven to support a termination. S.Z., 547 N.W.2d at 890. But both of the grounds on which the district court based the termination here require an inquiry into the reasonableness of the county's efforts to reunify the family, to which we now turn.

Failure of reasonable efforts

In any proceeding to terminate parental rights,

(b) * * * The social service agency has the burden of demonstrating that it has made reasonable efforts or that provision of services or further services for the purpose of rehabilitation and reunification is futile and therefore unreasonable under the circumstances. * * *

(c) * * * When determining whether reasonable efforts have been made, the court shall consider whether services to the child and family were:

(1) relevant to the safety and protection of the child;

(2) adequate to meet the needs of the child and family;

(3) culturally appropriate;

(4) available and accessible;

(5) consistent and timely; and

(6) realistic under the circumstances.

Minn. Stat. § 260.012 (Supp. 1997). The reference to futility was added by a 1997 amendment that merely codified supreme court precedent. See S.Z., 547 N.W.2d at 892 ("[T]he Act requires that the court make the determination of whether reasonable efforts have been made to reunite the family, even if that determination is that provision of services for rehabilitation is not realistic under the circumstances.").

"Efforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure." In re Welfare of J.H.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). A determination of reasonableness requires examination of the length of a parent's involvement with social services and the quality of the agency's effort. M.G., 407 N.W.2d at 122.

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, so as to include real, 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 J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). But in J.A., this court deferred to the district court's conclusion that reasonable efforts had been made, and despite the language of that opinion, this court has declined to require the provision of every service that might be conceived of from the vantage of hindsight. See B.M., 383 N.W.2d at 708 (concluding that failure to provide mother with therapy for her own childhood abuse did not defeat termination in view of other efforts provided).

C.B. and S.G. argue that the county failed to make reasonable efforts because it (1) failed to pursue a solution to their alleged lack of transportation in the spring of 1996, (2) failed to allow them extended or unsupervised visitation with A.G. in which they could put into practice the skills they learned in parenting classes, (3) failed to set up or coordinate individual therapy or counseling, and (4) failed to provide vocational help or housing assistance. We see nothing in the record to support appellants' assertion that A.G.'s social worker knew that initial visitation difficulties stemmed from lack of transportation and nothing in the record that even indicates the distances between A.G.'s foster home and the parents' various living arrangements. S.G. had access to a car between August and November 1996 because the record shows he was living in one. When S.G.'s car was impounded, the county paid over $1,000 to retrieve it, only to see it impounded again. If transportation difficulties were the cause of the lack of visitation before September 1996, then the visitation problems underlying the May 1996 CHIPS petition apparently were solved without county action, but they were not the only basis for the petition.

This court has made clear that where poverty contributes to a CHIPS finding, the county must provide "supportive services that would alleviate the financial stresses" rather than merely ordering the parent to correct them. In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). But although C.B.'s and S.G.'s inability to find housing or retain employment likely contributed to the finding of palpable unfitness, the bulk of the record emphasizes their lack of practical parenting skills related to their mental health impairments. Because their parenting class instructor supervised most of their visits with A.G., appellants in effect were given a supervised parenting practicum. C.B. and S.G. contributed to the visits' brevity and lack of intimacy by leaving early and by bringing friends with them. After nearly a year, Kankel still believed A.G. would not be safe in an unsupervised visitation setting. The parents' argument that unsupervised visitation should have been provided amounts to a difference of opinion with Kankel, and the district court's decision to believe Kankel is a credibility determination that this court will not disturb on appeal.

Finally, appellants argue that the county should have taken a more active role in facilitating counseling. The record does not indicate why both parents delayed their psychological evaluations from July 1996 to February 1997. But it does show that S.G. had a car for the majority of that period, and C.B. had found a way to attend counseling for the four years before A.G.'s birth. The county arranged to pay for the services, the social worker provided names and phone numbers for the parents to call, and when C.B. and S.G. failed to follow through, the social worker set up appointments. It is unclear what more the county could have done.

In summary, we conclude that the psychological and parenting evaluations indicating unsafe practices, very slow progress, and a poor prognosis for recovery from underlying mental health conditions support the district court's finding that it is "highly unlikely" that any services the county could provide will enable C.B. and S.G. to parent A.G. in the foreseeable future.

Analysis of the best interests of the child requires a balancing of the child's interest in maintaining a relationship with his parents, and the parents' own interests, against the child's health and interest in stability, to which length of time in foster care is a relevant consideration. M.G., 407 N.W.2d at 121. Here, A.G. has not lived with his parents for any length of time and would be required to remain in foster care for some time before circumstances improved to the point that he could join them, if in fact such improvement ever occurred. Although we recognize the tragedy involved in terminating the rights of willing parents, we conclude that the paramount importance of A.G.'s best interests here requires affirming the district court.

Affirmed.

[ ]1 Appellants argue that Lund's finding that C.B. had an average understanding of child care and child development precludes a finding that she is palpably unfit to parent. But Lund also concluded that C.B. appeared to have no emotional investment in childrearing, which is as important. Appellants also do not contest Lund's findings with regard to S.G.'s unfitness to parent, and the record indicates that C.B. and S.G. intend to remain together for the foreseeable future.