In the Matter of the Welfare of the Children of: A.P. and D.P., Parents.

In the Matter of the Welfare of the Children of: A.P. and D.P., Parents. A04-1604, Court of Appeals Unpublished, March 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1604

 

In the Matter of the Welfare of the Children of:

A.P. and D.P., Parents.

 

Filed March 22, 2005

Affirmed

Gordon W. Shumaker, Judge

 

McLeod County District Court

File No. J7-04-050041

 

 

Julie Wacker Hanjani, 218 Main Street South, Hutchinson, MN 55350 (for appellants-parents)

 

Michael K. Jung, McLeod County Attorney, Mark Metz, Assistant County Attorney, 830 East Eleventh Street, Glencoe, MN 55336 (for respondent)

 

Susan Allen, 9490 138th Street West, Savage, MN 55378 (guardian ad litem)

 

 

Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellants challenge the termination of their parental rights on the grounds that the record does not support the district court's findings that termination is in the children's best interests and that placing them with a relative is not a viable alternative to terminating appellants' parental rights.  Because we conclude that the findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous, we affirm.

FACTS

 

            Appellant A.P. is the mother of ten-year-old A.T.; she and appellant D.P. are the parents of seven-year-old D.P., six-year-old I.P., three-year-old A.P., and two-year-old I. P.[1]  Appellants have moved a great deal since their marriage in 1996: they spent two periods in different places in California, two periods in Minnesota, and one in Arizona They most recently moved to Minnesota in 2002, before the birth of their youngest child.  Both he and A.P. tested positive for marijuana at the time of his birth.

The children came to the attention of respondent McLeod County's social services department in February 2003, when it was reported that they were endangered because of appellants' use of drugs.  They were all living in a hotel room without clean clothes, diapers, or food and it was reported that appellants' food stamps had been traded for drugs.  In May 2003, both appellants were arrested on the same day: A.P. for domestic assault and D.P. for DUI and child endangerment because he had been driving with the children in the car when his blood alcohol concentration was .13.  The children were found in the car, dirty and improperly clothed.  Although the temperature was in the 50s, one child was naked and one wore only a diaper.

            A CHIPS petition was filed and the children were removed from appellants' custody.  The children returned to appellants in June 2003, but were again removed a few days later when appellants failed to abide by the court's order to abstain from alcohol.  The children have not been returned to appellants.  Since February 2004, all five children have lived together in a foster family that will adopt them if appellants' parental rights are terminated.  It is undisputed that the children are thriving in this foster family.

            Neither appellant has made significant progress to correct the conditions that led to the children being removed from the home in June 2003.  A.P. was arrested later in June 2003 for a hit-and-run accident and a DUI, and she was arrested in July 2003 for illegally obtaining prescription drugs.  Appellants were evicted from their apartment in August 2003 and were again found to have used alcohol in violation of the court's order.  A.P. spent part of September, all of October, and part of November in jail, and the remainder of November and part of December in inpatient treatment.  She did not complete the outpatient portion of her treatment, and she is currently on probation.  D.P. is also on probation and also failed to complete the outpatient portion of his alcohol treatment.

            Both appellants come from California and would like the children to be placed with relatives there.  They identified two possible placements: with an aunt of A.P. or with D.P.'s mother and her husband.  Early in January 2004, two social workers went to California to meet these relatives and explore the possibility of placement with them.  D.P.'s mother was initially willing to take two of the children, but later notified the social worker that she would not be able to take them.  A.P.'s aunt was willing to take the children, but she is herself somewhat dependent.  She has Lupus, lives on disability income, has no vehicle, and relies on her adult children for assistance and transportation. 

            Appellants did not include D.P.'s father on their list of possible placements because they had no contact with him.  In January 2004, however, appellants lied to the social worker and the children's guardian ad litem so they would not be aware that D.P. was violating the terms of his felony probation by traveling to California for the funeral of D.P.'s paternal grandmother.  They spent most of the month in California.

While there, they met D.P.'s father and told him that the children were in foster care.  D.P. asked his father if he would take the five children, two of whom had never met him.  Because appellants had not included D.P.'s father on the list of relatives who might be possible permanent placements for their children, the social workers did not interview him when they went to California.  However, he and his wife traveled to Minnesota for the hearing.

            Following three days of hearing, at which the court heard testimony from three social workers, D.P.'s father and his wife, a substance-abuse professional who had worked with A.P., the guardian ad litem, the children's foster mother, two police officers, and both appellants, the court ordered the termination of appellants' parental rights.  They challenge that termination, arguing that the district court's findings are not supported by clear and convincing evidence.

 

 

 

D E C I S I O N

            On appeal in a termination proceeding, "appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous."  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted).  "Considerable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citations omitted). 

            The district court concluded:

            2.         That the State has proven by clear and convincing evidence that [D.P.] is palpably unfit to be a parent to his children, pursuant to [Minn. Stat] § 260C.301, subd. 1(b)(4).

 

            3.         That the State has proven by clear and convincing evidence that [A.P.] is palpably unfit to be a parent to her children, pursuant to [Minn. Stat] § 260C.301, subd. 1(b)(4).

 

            4.         The State has proven by clear and convincing evidence that [D.P.] has substantially, continuously, and repeatedly refused and neglected to comply with the duties imposed upon the parent by the parent/child relationship, including but not limited to, providing the children with the necessary food, clothing, shelter, education, and other care and control necessary for the children's physical, mental, and emotional health and development, and reasonable efforts by the Social Services agency have failed to correct the conditions that formed the basis for the petition and reasonable efforts would be futile, and therefore, unreasonable, pursuant to [Minn. Stat.] § 260C.301, subd. 1(b)(2).

 

            5.         The State has proven by clear and convincing evidence that [A.P.] has substantially, continuously, and repeatedly refused and neglected to comply with the duties imposed upon the parent by the parent/child relationship, including but not limited to, providing the children with the necessary food, clothing, shelter, education, and other care and control necessary for the children's physical, mental, and emotional health and development, and reasonable efforts by the Social Services agency have failed to correct the conditions that formed the basis for the petition and reasonable efforts would be futile, and therefore, unreasonable, pursuant to [Minn. Stat.] § 260C.301, subd. 1(b)(2).

 

            6.         The State has proven by clear and convincing evidence that McLeod County Social Services has made reasonable efforts and exercised due diligence to use appropriate and available services to meet the needs of the children and the children's family in order to prevent removal of the children from the children's family, and upon removal, [has] provided reasonable services to eliminate the need for removal and reunite the family, pursuant to [Minn. Stat.] § 260.012(b).

 

            7.         Terminating the parental rights of . . . [D.P. and A.P.] is in the best interest of the children.  It is not in the best interests of the children that permanency be established with a relative.

 

Appellants challenge the findings made in support of these conclusions. 

Appellants claim that the court based its conclusion of palpable unfitness on a finding of one DUI conviction for D.P. and a finding of chemical dependency for A.P.  But the supporting findings are much more extensive.  As to both appellants, the district court found that (1) a report of the incident when the children were found with them in a hotel room indicated that they "had traded food stamps for drugs and are known to sleep for long periods of time after drug use, leaving the infant alone in the crib"; (2) they used alcohol twice in violation of a court order; (3) they provided  "a very unstable living environment for the children"; (4) they missed 4 of 13 scheduled visits with the children between August 2003 and January 2004; (5) in 2004, they did not visit the children at all in January and missed one of three visits in February and one of four in March; and (6) according to credible testimony, they "lied to social services when they left for California."

As to D.P., the district court found that: (1) he "has struggled with chemical-dependency issues despite outside assistance"; (2) he was arrested for child endangerment as well as DUI; (3) he has "failed to maintain consistent contact with the children despite arrangements and assistance from Social Services"; and (4) his "explanations for the reasons that he missed those visits [with the children] were not reasonable . . . and [he] was unable to make it a priority to visit his children." 

As to A.P., the district court found that (1) after going through alcohol treatment, she tested positive at her first aftercare session; (2) she "failed to remain sober until recently [and] . . . placed the children in danger due to her chemical abuse"; (3) according to credible testimony, she "was not open about her chemical use and had been unsuccessful with treatment on a number of occasions, despite previous court orders"; (4) she was arrested for a hit-and-run accident and a DUI, for illegally obtaining prescription drugs, and for assault; and (5) when she was found in a hotel room with the five children, she tested positive for THC and amphetamines and "stated she had no food and no cash." The district court made sufficient findings to support its conclusion that appellants are palpably unfit to be parents.

The district court also found that appellants will not be able to care for their five children in the reasonably foreseeable future, and appellants disagree with that finding.  But A.P. testified that she was not ready to care for the children because the house was not ready for them; she still needs to complete treatment, which would take 12 weeks; and "then after I'm done with all that I need to, you know, just get myself together."  A.P. did not want the children released into her custody.

Other testimony also supports the finding that appellants will not be able to care for their children in the foreseeable future.  The guardian ad litem was asked if appellants could care for their children.  She answered, "Not at this time . . . maybe some day they will in the future.  But the children just can't be put on hold."  When asked, "In the reasonably near future do you think [appellants] will be able to [care for their children]?" she answered, "No.  I don't think so."  D.P.'s father, when asked if appellants should have their children back "today," said "[N]o, not today," and said appellants had to "become more educated about these parenting needs and their responsibilities."  D.P.'s father's wife testified that she did not think appellants were in a position to take custody of their children and that she didn't know if they could be fit parents.  The finding that appellants will not be able to care for their children in the foreseeable future was based on substantial evidence.

Appellants argue that they did not have sufficient time to comply with the criteria established for reunification of their family.  But the record shows that appellants' continued use of drugs and alcohol, when abstinence was a criterion for reunification, lasted from the time when the children were first removed in June 2003 until shortly before trial in April 2004 and that, although appellants testified that they no longer used drugs and alcohol, they did not take all the required breathalyzer tests and had failed to complete outpatient treatment.  Moreover, appellants present no basis for assuming that the improvements not made prior to the hearing could or would be made after the hearing, and A.P. testified, after her children had been out of the home for almost 11 months, that she was not ready to have them returned to her.

Appellants also challenge the district court's conclusions that terminating appellants' rights is in the children's best interests and permanent placement with a relative is not in their best interests.  Again, both conclusions are based on findings that are supported by the evidence.  The guardian ad litem testified that appellants' children need stability, which they have found with the foster parents who wish to adopt them. 

I see these parents loving their children, but I believe the children need to have some permanency.  I think they have bounced around for many, many years, and since I started working with the children . . . it seems that they have stabilized quite a bit in their behavior in the foster homes . . . . They seem to be doing very well in the [present foster home] and at this point in time that would be my recommendation [that they stay in that home].

 

 . . . .

 

I would certainly hate to disrupt the children at this point in time because it seems like they have finally gotten settled in a lot of their behaviors.  I think everything [their behavioral problems] would start all over again.  [T]hese children have finally gotten some stability, and I think it would be very detrimental to change them one more time.

 

 . . . .

 

I think these children have numerous emotional issues that disruption causes a lot of stress on these children. 

 

            The foster mother testified that the children have been improving.[2]  A.P. herself testified that the children were now in a safe place and that, if they do not go to a relative, she thinks they should stay with this foster family.  The social worker testified, "[W]e believe that what is in the best interest is that these children have stability and that they've  they are now stable in their placement and that [this foster family is] the best option for these children." The finding that terminating appellants' parental rights is in the children's best interests is supported by the evidence.

            Appellants rely on Weiler v. Lutz, 501 N.W.2d 667 (Minn. App. 1993), aff'd sub nom. Valentine v. Lutz, 512 N.W.2d 868 (Minn. 1994), and In re Welfare of M.P., 542 N.W.2d 71 (Minn. App. 1996), to argue that it is preferable for children to be raised by a relative.  But "‘[this] preference is only a preference.  It is not a commandment to be followed blindly or mechanically irrespective of the particular needs of individual children.'"  In re Adoption of C.H., 554 N.W.2d 737, 743 (Minn. 1996) (quoting In re S.T. and N.T., 512 N.W.2d 894, 898 (Minn. 1994)).

The fact that there is a relative available who might be a suitable adoptive parent does not mean that the foster parents are precluded from attempting to overcome the relative preference by showing that permanent placement in their home is in the child's best interests. ‘[G]ood cause' to depart from the preference, and ‘detriment' to a child, are to be viewed as part of an overall consideration of the best interests of the child."

 

Id. (citations omitted).

            Moreover, testimony indicated that the suitability of either of the possible relative placements was dubious.  Appellants had named A.P.'s aunt as a possible placement.  Social workers who visited her in California testified that she suffers from Lupus and must stay indoors out of the sun, lives on disability income, has no car and depends on others for transportation, and did not seem to recognize the special needs of the five children.  She had no plans for caring for the children or meeting their needs, and her present apartment would not accommodate them.

The other possible placement was with their paternal grandfather and his wife.  They had not been named by appellants as a possible placement, presumably because appellants had had no contact with them for two and a half years.  The grandfather testified that he made contact only because of the sudden death of his mother and that he had been emotionally and economically devastated by his mother's and his brother's recent deaths.  He had never met the two youngest children, and he had not seen the others for about two and a half years.  When asked if he had a relationship with the older children, he said he wished it were better.  He said he would not be ready to take the children until he found a larger place to live, reestablished himself financially, and made other changes; he also said he would consider letting appellants visit the children often.  The grandfather's wife testified that she also had not seen the children for over two years, had never raised more than one child at a time, would be the primary caretaker of these five children, and could not take them for a couple of months.  Clear and convincing evidence supports the district court's finding that permanent placement with a relative would not be in the children's best interest.

We see no basis for overturning the termination of appellants' parental rights.

Affirmed.

[1]A.T.'s father , P.T., does not appeal from the termination of his parental rights.  Since A. T. was three months old, he has lived with both appellants as their child and a sibling of their other children.

[2]  All of the children have now been with her for a year; three of them have been with her for 18 months.