In the Matter of the Welfare of the children of: S.L.J., mother, and R.E.G., father.

In the Matter of the Welfare of the children of: S.L.J., mother, and R.E.G., father. A04-2302, Court of Appeals Unpublished, June 14, 2005.

This opinion will be unpublished and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

A04-2302

 

 

In the Matter of the Welfare

of the children of:

S.L.J., mother, and R.E.G., father.

 

 

Filed June 14, 2005

Reversed and remanded
Klaphake, Judge

 

Houston County District Court

File No. JX-04-50126

 

James A. Schultz, Schultz Law Office, 11 East Cedar Street, P.O. Box 38, Houston, MN  55943-0038 (for respondent mother S.L.J.)

 

Kurt J. Knuesel, Pflughoeft, Pederson & Johnsrud, L.L.P., 160 Lafayette Street, P.O. Box 436, Winona, MN  55987-0436 (for appellant father R.E.G.)

 

Richard W. Jackson, Jr., Houston County Attorney, Suzanne M. Harnack, Assistant County Attorney, 304 South Marshall Street, Suite 201, Caledonia, MN  55921 (for respondent Houston County)

 

Margaret Ranzenberger, 304 South Marshall Street, Suite 204, Caledonia, MN  55921 (guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant R.E.G. challenges the termination of his parental rights to his children, L.E.G. and J.S.G., arguing that the district court erred by identifying five statutory bases for termination under Minn. Stat. § 260C.301, subd. 1 (2004).  Because the district court's findings are not supported by substantial evidence, we reverse the termination of appellant's parental rights and remand this matter to the district court for further proceedings in accordance with this opinion.

D E C I S I O N

            This court reviews the district court's order terminating parental rights to determine whether (1) the district court has identified one of the statutory bases for termination, which are currently found at Minn. Stat. § 260C.301, subd. 1 (2004); (2) the district court's findings are supported by substantial evidence; and (3) the district court's conclusions are clearly erroneous.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  "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."  Id.

            Evidence supporting termination must relate to conditions existing at the time of termination, and it must appear likely that the conditions leading to termination will continue for an indefinite and prolonged time.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  The responsible social services agency must make reasonable efforts to reunite the child with his or her parents in a safe and permanent home.  Minn. Stat. § 260C.001, subd. 3(1) (2004).

            In addition to identifying a statutory basis for termination, the district court must make findings that termination is in the best interests of the child.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  There is a presumption that the child's best interests are placement with a parent, unless a statutory basis for termination is proved by clear and convincing evidence.  P.R.L., 622 N.W.2d at 543.  

            The district court here identified five statutory bases for termination:  (1) abandonment, Minn. Stat. § 260C.301, subd. 1(b)(1); (2) neglect of parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (3) palpable unfitness, Minn. Stat. § 260C.301, subd. 1(b)(4); (4) failure to correct conditions that led to an out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (5) children neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8).

            1.         Abandonment

            A presumption of abandonment exists when a parent has had no contact on a regular basis with a child and has expressed no consistent interest in the child's well-being for six months, despite the responsible agency's reasonable efforts to facilitate contact.  Minn. Stat. § 260C.301, subd. 2(a) (2004).  The court may find abandonment in the absence of the presumption.  Id. The parent may establish good cause for failing to make contact.  Id.  "[A]bandonment requires both actual desertion of the child and an intention to forsake the duties of parenthood."  L.A.F., 554 N.W.2d at 398 (quotation omitted).

            The district court's findings of abandonment here are not supported by substantial evidence.  Although appellant did not visit the children for 10 months, from September 2003 until June 2004, he was a resident of the state of Arkansas during that period and was cooperating with a home study done pursuant to the Interstate Compact for the Placement of Children (ICPC), which was not concluded until April 2004.  Appellant maintained contact with the county in Minnesota during this time and participated in court hearings by telephone.  Because appellant's actions are not consistent with a finding of intent to forsake the duties of parenthood, we conclude that the district court erred in determining that appellant abandoned the children.

            2.         Neglect of Parental Duties

            "Neglect of parental duties" is the failure to comply with the obligations of parenthood, including, but not limited to, providing a child with food, clothing, shelter, education, or other care necessary for a child's physical, mental, or emotional well-being.  Minn. Stat. § 260C.301, subd. 1(b)(2).  Neglect of parental duties can include failure to provide financial support, as well as failure to provide emotional or physical protection or supervision.  See In re Welfare of J.D.L., 522 N.W.2d 364, 367 (Minn. App. 1994); In re Welfare of D.I., 413 N.W.2d 560, 564-65 (Minn. App. 1987).

            Here, although appellant may not have been the primary caretaker in Arkansas, the children's pediatrician testified that he was very involved and took primary responsibility for their medical care until they left Arkansas.  The ICPC home study found that the home he maintained was clean and appropriate for children and that he carefully managed his money.  There are no allegations that the children lacked food, clothing, or shelter while living with appellant and their mother in Arkansas.  After the mother left Arkansas with the children in May 2003, appellant did not know where they were until July 2003; from June 2003 until the district court terminated his parental rights, the children were in foster care and appellant was not asked to provide for their physical needs.  Appellant was not providing housing or expected to provide housing; after he moved to Minnesota, appellant found housing appropriate for visitation within a matter of weeks.  Appellant's visitation with the children during the weeks immediately preceding termination was at least fair, according to county officials, or largely positive, according to the visitation supervisor.  Appellant's obstreperous behavior certainly had a direct impact on his interactions with the county, but it is not clear from the evidence that this behavior affected the parent/child relationship. 

            Based on the record before us, we conclude that the findings of neglect of parental duties are not supported by substantial evidence.  The district court therefore erred in terminating appellant's parental rights on this basis.

            3.         Palpable Unfitness

             A parent is presumed to be palpably unfit

to be a party to the parent and child relationship [where there is] a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship . . . 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.

 

Minn. Stat. § 260C.301, subd. 1(b)(4).  In order to terminate parental rights for palpable unfitness, the district court must find that reasonable efforts have been made to prevent placement and reunify parent and child.  Minn. Stat. § 260C.301, subd. 8 (2004); see also In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).

            Despite the more specific language of earlier cases that preceded recent statutory amendments, the idea of "palpable unfitness" comes down to a question of whether a parent has the capacity to parent or the ability to engage in "constructive efforts to improve [his or her] ability to parent."  See In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  In A.V., both parents had documented serious limitations:  father had a permanent brain injury that affected his cognitive functioning and anger control, and mother had low cognitive function and a personality disorder; neither condition was correctible.  Id. at 721.  In S.Z., father had more than 20 years of major mental illness that continued at the time of the hearing; he acknowledged that he did not intend to take his medication.  Id., 547 N.W.2d at 894.  In In re Child of P.T., 657 N.W.2d 577, 582 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003), both parents lacked parenting skills and had diagnosed personality disorders.  In In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003), this court upheld a finding that the father was palpably unfit when he was serving prison time for murdering the children's mother. 

            The district court found that appellant had engaged in "bizarre, threatening and inappropriate behavior."  There was extensive testimony about appellant's difficult relationships with county staff and the children's foster parents, as well as indications that this type of behavior also occurred in appellant's dealings with authorities in Arkansas and Mississippi.  In addition, there was limited testimony about abuse involving the children's mother, and there were indications that appellant has a history of mental health problems.  Appellant denied these allegations, and no documentation was provided to support them.  There was little or no testimony about how appellant's behavior affected the children or whether it was directed toward them.

            The examining psychologist in Minnesota, an Arkansas family counselor, and the children's Arkansas pediatrician all provided largely positive comments about appellant and his parenting skills.  The psychologist opined that appellant would benefit from six to twelve months of anger management counseling.  If successful, this would allow appellant, in theory, to improve his parenting skills within the foreseeable future.

            Based on our review of the entire record, we conclude that the district court's findings of palpable unfitness are not supported by substantial evidence.  The district court therefore erred in terminating parental rights on this basis.  But we are troubled by the failure to document appellant's mental health history and his actions in Mississippi and Arkansas, and by the county's failure to make reasonable efforts to provide appellant with anger management counseling.  We further conclude that the children remain in need of protective services and direct the district court to continue the CHIPS proceedings until the county can supply this information and refer appellant to the appropriate services.[1]

            4.         Failure to Correct Conditions

            Termination based on the failure to correct conditions leading to the out-of-home placement requires proof that (1) the child has been out of the home for 12 out of 22 months, or six months if the child is less than eight years old, unless there is regular contact and the parent is in compliance with the case plan; (2) there is a court-approved plan; (3) the parent has failed to correct conditions leading to the out-of-home placement; and (4) the social service agency has made reasonable efforts to rehabilitate the parent and reunify the family.  Minn. Stat. § 260C.301, subd. 1(b)(5). 

            The case plan here required appellant to (1) visit the children; (2) have a psychiatric evaluation and follow the recommendations; and (3) cooperate with the ICPC study.  The district court's findings of non-compliance appear to be based on frustration with appellant's defiance and manipulation of the system and his abusive conduct toward county staff.  Appellant, however, visited the children after he came to Minnesota, except for a period in August when he was in jail.  He cooperated by undergoing a psychiatric exam, but refused anger management counseling, and he basically cooperated with the ICPC study.      

            Although the county offered many extraordinary services to appellant, including assistance with housing, bus fare, transportation, supplies for visitation, food vouchers and phone cards, it failed to pursue a referral to anger management counseling.  This contradicts the district court's findings that the county made reasonable efforts to rehabilitate appellant.

            This court found termination not justified when a parent "completed many of the conditions of the plan," but not all conditions.  In re Welfare of M.H., 595 N.W.2d 223, 228 (Minn. App. 1999).  Here, while appellant obstructed the county's efforts and made the process more difficult, he largely fulfilled the bare requirements of the case plan.  We therefore conclude that the district court's findings supporting termination for failure to correct conditions are not supported by substantial evidence.

            5.         Child Neglected and in Foster Care

            Parental rights may be terminated when a child is found to be neglected and in foster care.  Minn. Stat. § 260C.301, subd. 1(b)(8).  "Neglected and in foster care" means that the child is in foster care by court order; the parent's circumstances are such that the child cannot be returned to the parent; and the parent has failed to make reasonable efforts to correct conditions, despite the availability of rehabilitative services.  Minn. Stat. § 260C.007, subd. 24 (2004).  The court must 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)       the effort the parent has made to adjust circumstances, conduct, or conditions that necessitates the removal of the child . . . including the use of rehabilitative services offered to the parent;

            (3)       whether the parent has visited the child within the three months preceding the filing of the petition, unless extreme financial hardship . . . prevented the parent from visiting the child . . .;

            (4)       the maintenance of regular contact or communication with the agency or person temporarily responsible for the child;

            (5)       the appropriateness and adequacy of the services provided or offered to the parent to facilitate a reunion;

            (6)       whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time, whether the services have been offered to the parent, or, if services were not offered, the reasons they were not offered; and

            (7)       the nature of the efforts made by the responsible social services agency to rehabilitate and reunite the family and whether the efforts were reasonable.

           

Minn. Stat. § 260C.163, subd. 9 (2004). 

            Again, we are troubled by the county's failure to pursue what appears to be a critical element of the efforts to rehabilitate appellant and reunify the familythe referral for anger management counselingparticularly when the examining psychologist was of the opinion that six to twelve months of such counseling could be sufficient.  We conclude that the district court's findings are not supported by substantial evidence.

            6.         Best Interests

            In any termination proceeding, the best interests of the child are of "paramount consideration."  Minn. Stat. § 260C.301, subd. 7 (2004).  The district court made only a conclusory finding that it is in the children's best interests that appellant's rights be terminated.  Generally, the district court must make findings that explain its rationale for determining the child's best interests.  In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003).  "In analyzing the best interests of the child, the court must balance three factors:  (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child." In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  The parent and the child's interests are not necessarily given equal weight.  Id.  Here, in the absence of findings, we are unable to determine the district court's rationale for deciding that termination of appellant's parental rights was in the children's best interests. 

            Although we conclude that the district court's findings are not supported by substantial evidence and that its decision to terminate appellant's parental rights was error, we remain troubled by appellant's attempts to obstruct the county's efforts.  We are also troubled by the county's failure to fully research appellant's mental health history, follow through on the referral to anger management counseling, and offer evidence on the effect of appellant's behavior on the parent and child relationship.  Rather than merely reverse the district court's order for termination, we conclude that the children remain in need of protective services until there is a satisfactory completion of the case plan, which requires anger management counseling, and should include mental illness treatment depending on appellant's mental health history.  See Minn. Stat. § 260C.312 (2004).  We
therefore reverse the district court's order for termination, but remand for a continuation of the CHIPS proceeding until a complete investigation and case plan can be satisfied.

            Reversed and remanded.

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

[1] We acknowledge that the county made one attempt to refer appellant to anger management counseling, which he refused.   A social service agency is not required to provide services if it would be futile to do so.  S.Z., 547 N.W.2d at 892.  But reasonable efforts should include more than one verbal attempt to offer a service called for in a case plan.