In the Matter of the Welfare of the Child of: K.L., Parent.

In the Matter of the Welfare of the Child of: K.L., Parent. A05-185, Court of Appeals Unpublished, August 16, 2005.

This opinion will be unpublished and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

A05-185

 

In the Matter of the Welfare of the Child of: K.L., Parent.

 

Filed August 16, 2005

Affirmed

Peterson, Judge

 

St. Louis County District Court

File No. J004650453

 

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN  55802 (for appellant K.L.)

 

Joseph M. Fischer, Benjamin M. Stromberg, Assistant County Attorneys, 320 West Second Street, Room 403, Duluth, MN  55802 (for respondent St. Louis County Social Services)

 

Brenda Servaty, 201 West St. Marie Street, Duluth, MN  55803 (guardian ad litem)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant-mother K.L. challenges the termination of her rights to her child D.L., arguing that the district court erred in concluding that she failed to overcome the statutory presumption that she is palpably unfit to be a party to the parent-and-child relationship.  We affirm.

FACTS

            Mother has a history of involvement with respondent St. Louis County Social Services.  In 1990, mother's rights to three of her children were involuntarily terminated, based on a determination that she was palpably unfit to parent.  In 1993, a fourth child was found to be in need of protective services, and mother consented to the termination of her rights to that child in 1994.  In 1996, mother's rights to her fifth child were involuntarily terminated. 

One of the conditions leading to the termination of mother's parental rights was the unhygienic condition of her home.  There were garbage and animal feces on the floor, moldy dishes, and rancid food inside and outside the refrigerator.  Mother's housekeeping ability has improved, and she now lives in a small, one-bedroom apartment that is clean but cluttered.

The findings of fact in the termination proceedings also indicate that mother verbally abused the children by routinely directing profanities toward them and physically abused the children by inappropriate discipline and by failing to protect them from physical and sexual abuse by others.  The findings of fact also indicate that mother suffers from a personality disorder that probably renders her incapable of remedying the defects in her parenting skills. 

D.L. was born to mother on May 2, 2004.  Based on the previous terminations of mother's parental rights, St. Louis County placed D.L. in foster care and on May 7, 2004, filed a petition to terminate mother's rights to D.L. 

D.L. has been diagnosed with cerebral brain dysgenesis, which is a severe congenital brain malformation.  The neurologist who examined D.L. explained that without significant exception, patients with this condition are mentally retarded; some cannot walk or talk; some are deaf; and some have visual impairment.  Due to D.L.'s young age, the neurologist could not determine the extent of D.L.s disabilities, but he anticipated that D.L. will have some permanent degree of disability, and it is not likely that D.L. will be able to live on his own.  The neurologist identified the most significant, potentially life-threatening, risk to D.L. as the possibility of seizures and status epilepticus, which means seizures in excess of 10 or 15 minutes' duration that fail to stop on their own.  According to the neurologist, D.L.'s caregivers need to be responsible and be able to recognize seizure activity and call for help if needed.  To maximize D.L.'s functioning long-term, caregivers also need to take D.L. to appointments with physicians and therapists and follow through on home-based therapy and exercises, as prescribed by occupational, physical, and speech therapists.  Also, D.L.'s home environment should include appropriate and consistent stimulation, as instructed by physicians and therapists.

As indicated in the findings of fact in the earlier termination proceedings, mother has a history of mental-health problems.  A May 25, 2004 psychological evaluation conducted by a licensed doctor of psychology concluded that mother (1) meets the criteria for a rapidly cycling form of bipolar disorder that is marked by intense mood swings and irritability;  (2) is schizoid in her personality, but instead of being a typical schizoid person who is gentle and bland, is more of a "fighter"; (3) is deeply asocial and prefers to live an isolated lifestyle and to keep relationships on the periphery; (4) is emotionally insensitive; (5) has a striking lack of insight that might create major "blind spots" concerning her own behavior; (6) denies virtually any allegations of child neglect or abuse and instead cites misunderstanding and injustice by others; (7) describes a strong concern for her children's medical care and considerable urgency to regain custody; and (8) shows a personality style that lacks sensitivity and warmth, along with a strong tendency to lose her temper.  The evaluation also stated that there is no evidence from psychological tests that mother is abusive toward children, even though she has fought adults a number of times. 

The district court concluded that (1) mother did not rebut the statutory presumption that she is palpably unfit to be a party to the parent-and-child relationship; and (2) it is in D.L.'s best interests that mother's parental rights be terminated. 

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).  The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2004) (listing nine criteria).  "[T]he evidence must address conditions that exist at the time of the hearing. . . .  When considering termination of parental rights, the court relies 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."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations and 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).  In any proceeding to terminate parental rights, the best interests of the child is the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2004).    

The district court may terminate a parent's rights to a child if the court finds

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are 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.  It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent's parental rights to one or more other children were involuntarily terminated.

 

Id.,  subd. 1(b)(4) (2004).

Because mother's parental rights to four other children were involuntarily terminated, it is presumed that mother is palpably unfit to be a party to the parent-and-child relationship.  When this presumption applies, it is the parent's burden to prove fitness to be a parent, and the absence of other reasons to terminate parental rights is not sufficient to overcome the presumption of unfitness.  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003). 

Mother argues that the district court erred by concluding that she did not rebut the presumption that she is palpably unfit to parent.  Citing D.L.R.D., and In re Welfare of Child of W.L.P., 678 N.W.2d 703 (Minn. App. 2004), which are both cases in which this court affirmed the district court's determination that a mother failed to rebut the presumption that she was palpably unfit, mother argues that those cases are distinguishable from her case and that they illustrate that she met her burden of rebutting the presumption.  Mother contends that her case is different from D.L.R.D. and W.L.P. because in those cases, the evidence about the mothers' current circumstances confirmed that they remained unfit, while in her case, the evidence shows that she has changed and is now fit and ready to parent.  But in making this argument, mother simply describes several factual differences between her and the mothers in D.L.R.D. and W.L.P. and concludes that the evidence she presented at trial goes well beyond what the mothers in D.L.R.D. and W.L.P. presented and rebuts the presumption of unfitness.  Mother does not explain why the factual differences between her and the mothers in D.L.R.D. and W.L.P. illustrate that she met her burden of rebutting the presumption of unfitness.

Although it is true that the mothers in D.L.R.D. and W.L.P. had shortcomings in their parenting abilities that mother does not have, simply showing that mother is different from other mothers who failed to rebut the presumption of unfitness does not demonstrate that mother met her burden of rebutting the presumption.  The absence of parental shortcomings that were present in D.L.R.D. and W.L.P. is not sufficient to overcome the presumption of unfitness.  To rebut the presumption, mother must show that there is not a consistent pattern of specific conduct or conditions directly relating to the parent-and-child relationship that renders her unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, and emotional needs of D.L.

Mother did present evidence that demonstrates that she has changed since her rights to her other children were terminated, and the district court found that the unhygienic and unsanitary and neglectful conditions that existed in mother's previous homes are not present in the apartment where mother now lives.  Mother also presented evidence that her personal hygiene habits, her ability to manage her personal finances, and her psychological condition have all improved.  But the district court concluded that the improvements were not sufficient to demonstrate that mother is, or in the reasonably foreseeable future will be, able to appropriately care for D.L. 

The district court found that although mother

has offered evidence to show that she is maintaining herself at a certain level with some help from her mother in a small apartment, she has not offered any substantive evidence to indicate that once saddled with the enormous stress of the responsibility of full care and control of a child, and especially of a special needs child that is going to need daily interventions by professionals and intensive supervision and energy and work by a mature, responsible caregiver, that she would be able to maintain at a satisfactory level without suffering severe mental health problems and severe lapses in parenting that would constitute neglect and possibly abuse.

 

            This finding is supported by the evidence.  Mother has a history of psychological problems.  Medications have been prescribed for her condition, but she took herself off these medications several years ago.  Mother has been diagnosed with bipolar disorder, which one expert testified is a lifetime condition that gets worse if not treated and can be triggered by an increase in stress.  Mother acknowledges that bipolar disorder can be treated with antidepressants, therapy, and learning to work through life stresses.  But mother did not present evidence that she receives such treatment.  Instead, mother testified that she deals with stress and periods of depression by doing stitching work, such as knitting, at home for up to 18 hours at a time.  As the district found, this method of dealing with stress and depression may work in mother's current circumstances where she lives alone, but it would not be a viable remedy if mother was responsible for providing care and supervision for a special-needs child.

            In addition, mother's mental-health problems are compounded by her schizoid personality.  The district court summarized the testimony and assessments of various professionals who described the effects of mother's mental-health problems on her ability to parent:

The other fundamental mental health problem for [mother] has been schizoid personality, which involves an inability to attach at any deep level with other people and a bland emotional range or affect.  This condition is not treatable by medications and at most may be allayed by long-term psychotherapy.  [Mother's] mental health condition, particularly as it affects her ability to parent, is seriously complicated by the existence of both the bipolar disorder and the schizoid personality disorder in tandem.  The two conditions in tandem result in a personality unable to develop a deep and intimate relationship, a personality that is asocial and unmotivated to establish connections with others, but also a personality that can go through a rapid cycle of mood swings, irritability, and depression, and a strong tendency to deal with difficult problems by either avoidance or lashing out in anger, including physically or verbally.  These personality traits and behavior descriptions coming from the psychological assessments fit virtually exactly the impressions that the various social workers and other professionals working with [mother] have observed over the years.  Moreover, the various workers who have been involved in this matter continue to see the same attitudes and behaviors and personality profile without change over the years. 

 

            Mother cites evidence that her mental-health condition has improved, but the evidence she cites does not demonstrate that the district court erred in its findings with respect to the effects that her mental-health problems have on her ability to parent.

There is also evidence that mother would not be physically able to care for D.L.  Because of back problems, mother cannot lift more than 15 pounds.  Mother has been observed having difficulty getting up from a chair with D.L. in her arms, and the district court observed that mother was in obvious pain sitting and walking in the courtroom.  Mother testified that her pain is being treated with electrical stimulation, which she contends works, but mother's testimony was contradicted by other testimony and by the district court's direct observations of mother.

Mother argues that she rebutted the presumption of unfitness by showing that she now has a clean and safe home for D.L., is able to work with other people, can enlist help from her mother and siblings, and has developed a method of dealing with her depression without medication.  But there was evidence presented that contradicted each of these claims, and the district court was persuaded by that evidence.  Mother does not argue that the evidence does not support the district court's findings; she simply argues that the district court should have made different findings.

Although mother has made a commendable effort to deal with the conduct and conditions that lead to the termination of her rights to her other children, she has not shown that the district court's determination that she did not rebut the statutory presumption that she is palpably unfit to be a party to the parent-and-child relationship is not supported by the record.  The district court did not err in determining that mother failed to rebut the presumption of unfitness and that for the reasonably foreseeable future, mother remains unable to care appropriately for the ongoing physical, mental, and emotional needs of D.L.

Affirmed.