In the Matter of the Welfare of the Child of:  M.B.Y., Parent.

In the Matter of the Welfare of the Child of:  M.B.Y., Parent. A04-2231, A04-2366, Court of Appeals Unpublished, July 5, 2005.

This opinion will be unpublished and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

A04-2231

A04-2366

 

In the Matter of the Welfare of the

Child of:  M.B.Y., Parent.

 

Filed July 5, 2005

Reversed Willis, Judge

 

Blue Earth County District Court

File No. J7-03-50307

 

 

Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN  56002-1056 (for appellants M.B.Y., T.Y., and N.A.)

 

Ross E. Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN  56002-3129 (for respondent Blue Earth County Human Services)

 

Barbara Thompson, 120 Sapphire Court, Mankato, MN  56001 (guardian ad litem)

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

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

WILLIS, Judge

            In this consolidated appeal from a termination of parental rights, appellant parents argue that the district court erred by making conclusory findings that are not supported by the record and by concluding that the best interests of the child support the termination of appellants' parental rights.  Because we find that the record does not clearly and convincingly support the district court's findings and that the findings do not adequately support the district court's decision to terminate appellants' parental rights, we reverse.

FACTS

D.J.Y. was born on January 30, 2003.  Four months later, on May 26, 2003, witnesses observed D.J.Y.'s mother, appellant M.B.Y. (mother), forcefully drop D.J.Y. into the back of a truck.  D.J.Y. was secured in a child seat at the time, but witnesses were concerned for both his and mother's health and safety.  When the police arrived, mother was very upset and had inflicted scratch wounds on her arms.  Mother was taken into custody for a 72-hour psychological hold, and D.J.Y. was taken to a hospital and subsequently released into the custody of appellant T.Y., D.J.Y.'s maternal grandmother.

            Blue Earth County (the county) filed a CHIPS petition regarding D.J.Y. on June 2, 2003.  D.J.Y. was placed into foster care after an emergency-placement hearing.  A week later at the CHIPS hearing, mother acknowledged that D.J.Y. was without proper parental care, and the district court found that D.J.Y.'s interests were best served by an out-of-home, foster-care placement.

On June 12, 2003, mother was committed to the St. Peter Regional Treatment Center for treatment of her mental-health problems, and she remained there until July 16, 2003, when she was released to Nova House, a halfway house.  At Nova House, mother attended a parenting group, received psychiatric counseling, and had regular, supervised visits with D.J.Y.  She left Nova House in December 2003 and moved into T.Y.'s home. 

A child-protection case manager developed a case plan for mother.  The case plan was agreed to by the county and mother and filed with the district court on August 11, 2003.  It required mother to (1) complete her mental-health treatment and participate in an aftercare program, (2) participate in a parenting assessment with Counseling Services of Southern Minnesota, (3) attend an early-childhood program to learn appropriate parenting skills, (4) establish an independent home for at least six months and learn the skills necessary to maintain an independent life, and (5) register to take the G.E.D.  Mother was not able to successfully complete her case-plan goals by the December 13, 2003 review, and the child-protection worker drew up another plan.  The new plan had many of the same goals, including establishing an independent home, maintaining contact with her mental-health team, continuing to work on her G.E.D., and registering for and attending an early-childhood parenting program.  

On November 14, 2003, appellant N.A. (father) was adjudicated D.J.Y.'s father, and in December 2003, he began visiting D.J.Y. regularly.  That same month, the district court postponed D.J.Y.'s permanent-placement decision to provide father with "the opportunity to determine the extent of his involvement in this matter" and to allow mother additional time to complete her case-plan goals.  The child-protection worker who developed mother's case plan also developed a plan for father that required him to attend parenting-skills classes, to work with Partners in Parenting, and to have a chemical-dependency evaluation.

On February 5, 2004, the county filed a petition for the termination of mother's and father's parental rights.  The county alleged that D.J.Y. had been in an out-of-home placement for more than six months and that there was not a substantial possibility that he will return home within the next six months.  The county also alleged that it had made reasonable efforts to correct the conditions that led to the out-of-home placement but that those conditions have not been corrected and, therefore, D.J.Y. could not return home.  The county asserted that it was in D.J.Y.'s best interests to terminate mother's and father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), and (8).

T.Y. intervened as a party in the proceedings before the district court, seeking to become a relative foster-care provider.  The district court found that both mother and father had failed to successfully complete their case plans, that the county's reasonable efforts failed to remedy the conditions that led to D.J.Y.'s foster-care placement, and that it was in D.J.Y.'s best interests to terminate mother's and father's parental rights.  The district court also found that T.Y.'s "home does not meet [the foster-care] licensing requirements" and that it "is not an appropriate placement for [D.J.Y.]."  The district court concluded that each of the three statutory grounds advanced by the county provided a basis for termination and ordered the termination of mother's and father's parental rights.  Both mother and father filed notices of appeal challenging the termination.  This court construed mother's notice of appeal as an appeal taken by both mother and T.Y. and consolidated their appeal with father's.   

D E C I S I O N

On appeal from a termination of parental rights, "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).  On review, "[c]onsiderable 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).  But we "closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

District courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Although the petitioner need only prove one criterion, the primary consideration in any termination proceeding is the best interests of the child.  Id., subd. 7 (2004).  District courts are required to make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

I.

The district court terminated mother's and father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), which provides that a court may terminate parental rights if 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."  This ground for termination further requires a finding that "either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable."  Id.

The district court found that mother and father failed to complete their case-plan goals.  It found that mother has obtained her own apartment but has failed to demonstrate an ability to live there independently and that she "has not learned or demonstrated adequate parenting skills."  The district court also found that father "was generally appropriate during visitation" with D.J.Y. but that father only "works about nine hours a week . . . and earns $8.00 per hour."  The district court also made specific findings regarding the services the county provided and ultimately found that the county's efforts were reasonable.  It concluded that despite the reasonable efforts of the county, mother and father have "fail[ed] to provide for [D.J.Y.'s] needs by learning and practicing appropriate parenting skills, finding and maintaining an independent residence, or obtaining the ability to support [D.J.Y.]." 

The district court's decision to terminate mother's and father's parental rights under section 260C.301, subdivision 1(b)(2), is not supported by adequate findings, and its findings are not supported by clear and convincing evidence.  Only a few of the district court's findings address mother's ability to parent.  And testimony from the child-protection worker indicates that mother has become more independent, more assertive about her role as D.J.Y.'s mother, and more involved with and attentive to D.J.Y.'s needs.  A counselor who worked with mother also testified that she saw "a lot of improvement" and that mother "was making great steps" toward reunification.  The district court found that mother has obtained an apartment but that she has yet to demonstrate "an ability to live there independently."  But the record shows that mother has not had enough time to effectively demonstrate an ability to live there independently.  Finally, the district court made no findings regarding mother's ability to support D.J.Y.

The district court also made no findings regarding father's parenting skills other than that he was "generally appropriate during visitation."  And testimony from both the child-protection worker and D.J.Y.'s foster mother indicate that father is an effective and active parent.  The record also shows that father and his wife have an independent household and that despite father's relatively low income, his wife has a stable job and provides support for their family.

The district court's conclusion that reasonable efforts have "failed to correct the conditions that formed the basis of the petition and [that] further reasonable efforts would be futile and therefore unreasonable" is also not supported by adequate findings or by clear and convincing evidence.  The county's efforts with respect to mother were not reasonable because the county failed to adequately consider mother's needs, making completion of her case-plan goals unrealistic under the circumstances.  See In re Welfare of A.R.G.-B., 551 N.W.2d 256, 263 (Minn. App. 1996) (enumerating several factors to consider when determining the reasonableness of an agency's efforts, including whether the services were "adequate to meet the needs of the child and family" and "realistic under the circumstances").  The record shows that mother has difficulty learning and processing information.  When asked if she thought that it was "a little bit unreasonable to expect" mother to become an effective parent in the time provided by the county, the child-protection worker testified, "Yes, I do."  She also acknowledged that during most of the time available to her mother was not able to work on her plan because she was in Nova House.  And the county petitioned for termination less than three months after mother left Nova House, making it impossible for her to establish and maintain an independent home for six months.

The county's efforts with respect to father were also not reasonable.  He was adjudicated D.J.Y.'s father in November 2003, his case-plan was developed in December 2003, and the county petitioned for termination in February 2004.  Not only did father have inadequate time to complete his case-plan goals, but also the record indicates that father did not receive a copy of his case plan.  And the child-protection worker who developed his case plan testified that she and father had "never discussed his plan at any length."  She acknowledged that the county gave father "a rather short" amount of time to "prove himself worthy" and that she is pursuing termination of his rights because it is the county's policy to terminate both parents' rights.

The record does not clearly and convincingly support the district court's findings, and its findings do not adequately support its conclusion that mother and father failed to comply with their parental duties.  The county's efforts to remedy the conditions that led to the out-of-home placement were not reasonable because the county did not provide mother or father with adequate time to complete their case-plan goals.  We conclude, therefore, that the district court erred by terminating mother's and father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2).

II.

The district court also based its termination of mother's and father's parental rights on its conclusion that, following the child's out-of-home placement, the county's reasonable efforts to correct the conditions leading to the child's placement have failed.  See Minn. Stat. § 260C.301, subd. 1(b)(5).  It is presumed that reasonable efforts have failed if:  (1) a child under the age of eight has resided outside of the home for six months unless the parent has maintained regular contact with the child and is complying with the out-of-home placement plan; (2) the court has approved the out-of-home placement plan; (3) the parent has not substantially complied with the court's orders and the case plan; and (4) "reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family."  Id., subd. 1(b)(5)(i)(iv). 

But only one of the factors of the presumption has been met:  the court approved mother's and father's case plans.  D.J.Y. has been in court-ordered foster care since June 2003, but the record shows that both mother and father have maintained regular contact with him.  Although neither mother nor father has successfully completed all of her or his case-plan goals, both have substantially complied with their court-ordered case plans.  The record indicates that mother has fully and diligently cooperated with the county and that she has made significant progress towards the completion of her goals.  There is no indication that mother is having difficulty managing her medications, and she has her own apartment and is in the process of establishing an independent household.  Father has also substantially complied with his case plan.  He submitted to the chemical-dependency evaluation and is involved with Partners in Parenting. 

Although the county made efforts to "rehabilitate the parent[s] and reunite the family," as discussed above, the county did not give either mother or father adequate time to complete his or her case-plan goals.  The county's efforts, therefore, were not reasonable.  Because the county's efforts were not reasonable and because mother and father have substantially complied with their case plans, we conclude that the county has not established the presumption that the county's reasonable efforts have failed.  And in the absence of the presumption, there is insufficient evidence to support the district court's termination of mother's and father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).

III.

The final ground on which the district court based its termination of mother's and father's parental rights is that D.J.Y. is neglected and in foster care.  See Minn. Stat. § 260C.301, subd. 1(b)(8).  A child is neglected and in foster care if (1) the child has been placed in foster care by court order; (2) the parents' circumstances, condition, or conduct is of a type that it is impossible to return the child to the home; and (3) the child's parents have "failed to make reasonable efforts to adjust their circumstances, condition or conduct."  Minn. Stat. § 260C.007, subd. 24 (2004).

A district court shall consider seven factors when determining whether a child is neglected and in foster care:  (1) the length of time the child has been in foster care; (2) any efforts the parents have made to adjust the circumstances, conduct, or conditions that led to the child's removal from the home; (3) whether the parent has visited the child within the three months preceding the filing of the petition to terminate parental rights; (4) whether the parent has maintained regular communication with the agency or person temporarily responsible for the child; (5) the adequacy of services provided to the parent to facilitate a reunion; (6) whether additional services would likely bring about lasting parental adjustment, such that the child could be returned to the parent; and (7) the nature of the efforts made by the social-services agency to reunite the family.  Minn. Stat. § 260C.163, subd. 9(1)(7) (2004).

The district court made the following findings to support its conclusion that D.J.Y. is neglected and in foster care.  The court found that D.J.Y. has been in court-ordered foster care since June 2, 2003.  The court also found that both mother and father failed to successfully complete their case-plan goals despite the efforts made by the county.  But these findings do not support the statutory requirement that return to the parental home is impossible.  And even if mother has not successfully completed all of her case-plan goals, rendering immediate reunification impossible, the record shows that she is making progress and suggests that she could complete her case-plan goals in the near future.

Neither the district court's findings nor the record supports the existence of the third component of "neglected and in foster care"that the child's parents have "failed to make reasonable efforts to adjust their circumstances, condition or conduct."  In fact, both the findings and the record show that mother and father have made reasonable efforts to meet their case-plan goals.  The record also shows that mother has made significant progress toward adjusting her circumstances and the conditions that led to D.J.Y.'s out-of-home placement.

As discussed above, the limited time that the county gave mother and father to complete their case-plan goals was not reasonable.  Their substantial compliance with their case-plan goals indicates that with additional time and support, reunification is possible.  Mother's and father's visitation with D.J.Y. and their open communication with the county also support the conclusion that D.J.Y. was not neglected as contemplated by the statute.  See Minn. Stat. § 260C.163, subd. 9(1)(7).  It is undisputed that D.J.Y. has been in foster care for more than a year, but reunification is not impossible, and mother and father have made and continue to make significant efforts toward future reunification.  For these reasons, we conclude that the district court erred by terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b)(8).

            Having determined that the district court's termination of mother's and father's parental rights is not properly based on the statutory grounds in Minn. Stat. § 260C.301, subd. 1(b), relied on by the county, we need not address D.J.Y.'s best interests.  See In re Welfare of M.H., 595 N.W.2d 223, 228 (Minn. App. 1999) (noting that "[a]lthough a child's best interests are paramount in a decision to terminate parental rights, . . . a court may not base termination of parental rights solely on the best interests of a child" (citation omitted)).  And because the findings and the record do not support termination under the statutory criteria advanced by the county, we conclude that the district court erred by terminating mother's and father's parental rights.

Reversed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.