In the Matter of the Welfare of the Children of: J. K., T. M. J., L. A. St. M. and J. E. Z., Sr.

In the Matter of the Welfare of the Children of: J. K., T. M. J., L. A. St. M. and J. E. Z., Sr. A05-203, Court of Appeals Unpublished, August 2, 2005.

This opinion will be unpublished and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

A05-203

 

In the Matter of the Welfare of the Children of:
J. K., T. M. J., L. A. St. M. and J. E. Z., Sr.

 

Filed August 2, 2005

Affirmed

Wright, Judge

 

Steele County District Court

File Nos. J3-03-050343, JX-03-50470, J7-04-50243

 

 

Bethene M. Koch, 525 East First Avenue, Shakopee, MN  55379 (for appellant J.K.)

 

Douglas Ruth, Steele County Attorney, Christine A. Long, Assistant County Attorney, 303 South Cedar, Owatonna, MN  55060 (for respondent Steele County Human Services)

 

 

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

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant-mother challenges the termination of her parental rights, arguing that (1) the district court's findings that she failed to comply with the duties of the parent-child relationship, that she is palpably unfit to be a party to the parent-child relationship, and that the county made reasonable efforts to reunite the family are not supported by the record; and (2) a transfer of permanent physical and legal custody to a relative, rather than termination of parental rights, is in the best interests of the children.  We affirm.

FACTS

 

On August 18, 2003, Steele County Human Services (SCHS) filed a Child in Need of Protection or Services (CHIPS) petition on behalf of L.K., then seven years old, alleging educational neglect.  Appellant-mother J.K. admitted the allegations, and L.K. was adjudicated a child in need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(3) (2004). 

In a subsequent visit to J.K.'s home, SCHS discovered that J.K.'s two younger boys, C.M., then three years old, and J.Z.J., then one year old, were living in unsanitary conditions.  SCHS workers observed hundreds of flies in the house; three to five inches of food, clothing, dirty diapers, and other refuse covering the floor; rotting food in and around the refrigerator; an unusable bathroom; and multiple safety hazards.  Both children were described as "filthy," and J.Z.J. was wearing only a soiled diaper. 

On October 31, 2003, SCHS filed a second CHIPS petition, alleging that C.M. and J.Z.J. were in need of protection or services.  J.K. admitted the allegations, and the two boys were adjudicated children in need of protection or services pursuant to Minn. Stat. § 260C.007, subds. 6(3), 6(8) (2004).  L.K., C.M., and J.Z.J. were removed from their mother's home and placed in foster care.

On June 19, 2004, J.K. gave birth to a fourth child, A.Z.  Several days after her birth, A.Z. was placed in foster care with her three brothers because J.K. had failed to comply with court-ordered services and maintain a clean and safe home.  On August 26, 2004, A.Z. was adjudicated a child in need of protection or services pursuant to Minn. Stat. § 260C.007, subds. 6(3), 6(8). 

In September 2004, SCHS filed a petition to terminate J.K.'s parental rights and the parental rights of the father of each child pursuant to Minn. Stat. § 260C.301, subds. 1(b)(2) (2004) (refusal or neglect to comply with the duties imposed by the parent-child relationship), 1(b)(4) (2004) (palpable unfitness to be a party to the parent-child relationship), and 1(b)(5) (2004) (failure of reasonable efforts to correct the conditions leading to out-of-home placement).  After a four-day trial, the district court involuntarily terminated the parental rights of J.K. as to each child based on the three grounds alleged in the petition.  Each father voluntarily terminated his parental rights.  This appeal followed.

D E C I S I O N

 

Parental rights may be terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  If clear and convincing evidence establishes that at least one statutory basis for termination exists and termination is in the best interests of the child, the district court may terminate parental rights.  Minn. Stat. § 260C.317, subd. 1 (2004); In re Welfare of L.A.F., 554 N.W.2d 393, 396-97 (Minn. 1996); see also Minn. Stat. § 260C.301, subd. 1(b) (2004) (providing statutory grounds for termination).  We review a termination of parental rights to determine "whether the district court's findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  We examine the record "to determine whether the evidence is clear and convincing."  Id. (citing In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980)).  In a proceeding to terminate parental rights, the best interests of the children are paramount.  Minn. Stat. § 260C.301, subd. 7 (2004). 

The district court based its decision to terminate J.K.'s parental rights as to L.K., C.M., J.Z.J., and A.Z. on the following three statutory grounds: (1) reasonable efforts failed to correct the conditions that led to the out-of-home foster placements, id., subd. 1(b)(5); (2) J.K. substantially, continuously, and repeatedly neglected or refused to comply with the duties imposed on her by the parent-child relationship because she failed to provide for her children's care, id., subd. 1(b)(2); and (3) J.K. is palpably unfit to be a party to the parent-child relationship, id., subd. 1(b)(4).  The district court also determined that termination of J.K.'s parental rights is in the best interests of each child.  Thus, our review begins with an inquiry as to whether the district court's findings are supported by clear and convincing evidence.  P.R.L., 622 N.W.2d at 543. 

I.

The district court found that SCHS made reasonable efforts to reunite the children with J.K., but that these efforts failed to correct the conditions leading to the out-of-home placement of L.K., C.M., J.Z.J., and A.Z.  "Reasonable efforts" is defined as the exercise of due diligence by the responsible social-services agency, upon removal of the child from the child's family, to use appropriate and available services to meet the needs of the child and the child's family in order to reunite the family.  Minn. Stat. § 260.012(b) (2004); In re Welfare of Children of R.N., 678 N.W.2d 49, 56 (Minn. 2004).  In determining whether reasonable efforts have been made, the district court is required to consider whether the 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.  Id., (c). 

The services provided "must go beyond mere matters of form so as to include real, genuine assistance."  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  The efforts of the social services agency must be directed at alleviating the conditions that gave rise to the CHIPS adjudication.  In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 19, 1987).  Whether the social-services agency has complied with its obligation to make reasonable efforts requires consideration of the length of time the agency was involved and the quality of services made available to the parent.  See id. 

The record demonstrates that from April 2003 to September 2004, social services offered to J.K. included (1) in-home parenting education; (2) in-home public-health nursing services; (3) psychological evaluations; (4) individual therapy; (5) therapy for her children; (6) coordination with MFIP, WIC, and Workforce Center services; (7) foster care, including parenting modeling in the foster-care home; and (8) respite care.  These services were tailored to resolve concerns related to the cleanliness of J.K.'s home; J.K.'s ability to care for her children, including providing proper discipline, nutrition, and hygiene; J.K.'s financial stability; and the family's mental health. 

Specifically, SCHS provided a public-health nurse and a family advocate who visited J.K.'s house at least weeklyand sometimes dailyto teach J.K. basic hygiene, nutrition, time-management skills, and methods of discipline.  SCHS also arranged therapy for J.K to address the underlying causes of her neglectful behavior.  Both the guardian ad litem and SCHS case worker Mary Johnson testified that SCHS made every effort to provide J.K. with proper parenting skills and to reunite the family.  Johnson testified that there were no remaining services to offer J.K., noting that J.K. had received services seldom available in termination cases, such as in-home observation and parenting instruction with the foster family.  Indeed, the record establishes that the social services provided here were ample in scope and intensity.  See In re Welfare of B.M., 383 N.W.2d 704, 708 (Minn. App. 1986) (noting where county offered in-home service provider who visited the home at least weekly, the social services provided were adequate), review denied (Minn. May 22, 1986).

The services were also available and accessible.  The public-health nurse and the family advocate visited J.K. at her home.  Because J.K. did not have a driver's license, Johnson arranged J.K.'s transportation to out-of-home appointments.  Johnson also accompanied J.K. to medical appointments and well-baby checks. 

The record also demonstrates that the social services provided were consistent and mindful of the rudimentary skills that J.K. needed to acquire.  Johnson visited J.K. more than 50 times while serving as her case worker.  The family advocate showed particular persistence, notwithstanding J.K.'s repeated cancellations of or failure to attend appointments.  Despite J.K.'s resistance, the family advocate reinitiated services with J.K. several times and testified at trial that she believed J.K. was capable of learning to parent effectively.

Our careful review of the record establishes that the district court did not err in concluding that SCHS made reasonable efforts to rehabilitate J.K. and to reunite her with her children. 

We next consider whether, in light of SCHS's reasonable efforts, the district court clearly erred in concluding that these efforts failed to correct the conditions leading to the children's out-of-home placement.

It is presumed that reasonable efforts . . . have failed upon a showing that:

            (i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months. . . . ;

            (ii) the court has approved the out-of-home placement plan[;]

            (iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan; and

            (iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

 

Minn. Stat § 260C.301, subd. 1(b)(5). 

The record demonstrates that L.K. was placed in foster care on October 28, 2003.  C.M. and J.Z.J. were placed in foster care on October 31, 2003.  The three boys were returned to their mother's custody on August 26, 2004, and resided with her until September 23, 2004, at which time they were placed with J.K.'s stepsister.  Taking into account the 29 days in J.K.'s custody in 2004, the three boys had each resided outside the parental home under court order for a cumulative period of 12 months and approximately 7 days at the time of trial.  But A.Z. had not resided outside the parental home for a cumulative 12-month period as she was not born until June 2004. 

The district court approved several out-of-home placement plans for the four children while they were in foster care.  The record demonstrates that J.K. failed to substantially comply with these case plans and related court orders by (1) often refusing to participate in in-home nursing sessions and in-home parenting education; (2) canceling therapy appointments; (3) not maintaining a clean, safe household; and (4) not consistently providing proper hygiene, nutrition, discipline, and toilet training for her children.  In addition, J.K. never secured regular employment or stable housing despite SCHS's efforts to engage her in Workforce Center and Section 8 services.  During the month that J.K. had custody of her children, she took L.K. and C.M. out of therapy; refused to permit home inspections; cancelled the majority of her scheduled therapy, parenting education, and nursing appointments; and allowed the home to return to an unsanitary state.  After nearly one year of social services, J.K. failed to comply with almost every condition of the custody order. 

In light of the district court's findings as to SCHS's reasonable efforts, which are supported by the record, the statutory presumption that the conditions that led to the out-of-home placement have not been corrected has been met and has not been rebutted as to L.K., C.M., and J.Z.J.  As to A.Z., for whom the presumption does not apply, the record contains clear and convincing evidence that the conditions leading to her out-of-home placement, namely an unsafe and unsanitary household and J.K.'s past history of neglect and poor parenting, were not corrected. 

II.

The district court may also terminate parental rights if it finds that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties of the parent-child relationship and reasonable efforts by the social-services agency have failed to correct the conditions that formed the basis for the petition.  Minn. Stat. § 260C.301, subd. 1(b)(2).  A parent's failure to complete key components of a court-ordered case plan, to provide parenting to the child, and to demonstrate parenting knowledge or skill provides ample evidence that the parent failed to comply with the duties and responsibilities of the parent-child relationship.  In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003); see also In re Welfare of J.S., 470 N.W.2d 697, 701-02 (Minn. App. 1991) (holding that parent's failure to obtain suitable housing, to maintain visitation with her children, and to attend social-services appointments regularly demonstrated a failure to comply with parental duties), review denied (Minn. July 24, 1991); In re Welfare of D.I., 413 N.W.2d 560, 564-65 (Minn. App. 1987) (holding that failure to work with social-services agency constituted refusal to comply with duties imposed by the parent-child relationship).

Having determined that SCHS's reasonable efforts to correct the conditions that led to the out-of-home placement have failed, we consider only whether J.K. substantially, continuously, and repeatedly refused to comply with the duties of the parent-child relationship.  In support of her argument that the district court's finding is erroneous, J.K. argues that she (1) provided her children with appropriate care and affection; (2) made significant strides in improving her parenting skills; and (3) only lapsed in her progress when SCHS imposed too many requirements on her at once and required that she work with social-services providers with whom she did not get along.  But the evidence presented at trial contradicts J.K.'s assertions and supports the district court's thorough analysis and ultimate determination that J.K. continuously neglected to comply with the duties of the parent-child relationship despite reasonable efforts by SCHS to reunite the family. 

J.K.'s initial case plan and subsequent out-of-home placement plans required her to, among other things, (1) complete a psychological evaluation; (2) work with a family advocate to acquire parenting skills; (3) work with a public-health nursing aide; (4) ensure that L.K. and C.M. receive therapy; (4) seek individual therapy; (5) attend the children's medical appointments; (6) visit daily with the children while they were in foster care to practice parenting; (7) support consistent toilet habits for L.K. and C.M.; (8) continue taking antidepressant medication; (9) receive prenatal care during her pregnancy; and (10) maintain proper hygiene and a clean home.

The record demonstrates that J.K. initially attempted to comply with plan requirements by completing a psychological evaluation; scheduling therapy and nursing appointments; and maintaining better hygiene.  J.K. also complied with the out-of-home placement plans by regularly visiting her children in foster care and participating in hands-on parenting modeling in the foster home. 

But the record also establishes that J.K. did not consistently comply with court-ordered requirements.  Although J.K. was referred for in-home parenting education in September 2003, she did not schedule her initial meeting with the family advocate until November 11, 2003.  After a delay in initiating in-home parenting meetings, J.K. did not keep scheduled appointments.  In part because of J.K.'s failure to keep these appointments and thus improve her parenting skills, J.K. repeatedly returned the children to foster care after home visits unbathed, soiled, hungry, and ill.  Overnight visits were eventually terminated because J.K. could not provide adequate care for the children or keep the house clean and safe. 

In January and February, J.K.'s appointment attendance improved and the social-services providers noted minimal progress in J.K.'s parenting.  But by late spring 2004, J.K. was again either canceling or failing to attend most of her therapy, parenting, and nursing appointments.  J.K. never secured stable housing or consistent employment. 

When J.K. began court-ordered daily sessions with the family advocate in July 2004, J.K failed to comply with the requirements of the program.  The family advocate eventually terminated services for lack of compliance.  In late August, when the parties agreed to return custody of the children to J.K, the record demonstrates that, despite a year of services, J.K. was unable to comply with a single requirement of the custody order. 

The record plainly demonstrates that J.K. failed to substantially comply with the requirements of the out-of-home placement plans, which ultimately resulted in her failure to demonstrate that she was capable of parenting.  The record supports the district court's finding that J.K. has substantially and repeatedly neglected to comply with her duties as a parent. 

III.

Parental rights also may be terminated on the ground of palpable unfitness when there is "a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship," which are "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) (emphasis added); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  A court may find a parent palpably unfit based on a pattern of neglectful or abusive conduct or on a particular condition of the parent.  In re Welfare of A.V., 593 N.W.2d 720, 721-22 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). 

The petitioning party must then demonstrate that these conditions will continue for a prolonged, indefinite period and that the conditions are permanently detrimental to the welfare of the children.  M.D.O., 462 N.W.2d at 377; see also In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003) (stating where parent's behavior is likely to be detrimental to children's physical or mental health, the parent may be found palpably unfit).  If, to the contrary, the evidence indicates that, within a foreseeable time, the parent will be able to care for the child, then the district court should decline to terminate parental rights and instead establish a supervised plan to give custody to the parent with whatever counseling and assistance is appropriate.  S.Z., 547 N.W.2d at 892.  While making significantprogress in fulfilling a case plan will support further parental assistance, rather than termination of parental rights, making only minimal progress supports the conclusion that the present conditions will continue for a prolonged, indeterminate period and that termination is proper.  In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999); J.S., 470 N.W.2d at 703.  

The district court found that

[J.K.] had her first child at fifteen years old and is still trying to progress through adolescent issues.  Therapy to work through these issues would take a lot of time and motivation, something [J.K.] has not shown to this point.  This therapy will not be completed in the foreseeable future.  These unresolved adolescent issues interfere with her present and future ability to parent young children.

 

The district court also found that J.K. continuously neglected to provide for her children's care. 

These findings are supported by the record and provide a legal basis to conclude that J.K. is palpably unfit to parent.  See In re Welfare of J.D.L., 522 N.W.2d 364, 368-69 (Minn. App. 1994) (holding that evidence demonstrating a pattern of inadequate parenting skills supports a finding that the parent was palpably unfit).  J.K. failed to comply with the requirements of the out-of-home placement plans and court orders and thus never acquired the necessary skills to care for her children properly. 

The record demonstrates that, when custody of the children was transferred back to J.K., after nearly one year of foster care, J.K. stopped sending L.K. and C.M. to therapy, refused home inspections, and grew increasingly uncooperative with the service providers.  The neglectful conditions reemerged immediately.  This evidence demonstrates a pattern of neglect sufficient to support a determination of palpable unfitness. 

Furthermore, J.K.'s recurrent inability to keep appointments with the public-health nurse, the family advocate, and her therapist, demonstrates that J.K. is unlikely to improve her parenting skills in the foreseeable future.  See J.S., 470 N.W.2d at 703 (finding that failing to cooperate with case plan by attending only some scheduled sessions supports the conclusion that the present conditions will continue for a prolonged, indeterminate period).  Although several experts testified that, with the proper amount and type of therapy, J.K. could learn to be an effective parent, the experts also agreed that it would take more dedication and commitment than J.K. has demonstrated.  The district court's determination that J.K. is unable to address her children's physical, mental, and emotional needs now and in the reasonably foreseeable future is supported by the record.   The district court's termination of J.K.'s parental rights because she was palpably unfit to parent was not erroneous.

IV.

Having determined that the record provides clear and convincing evidence supporting the statutory grounds for termination, we next evaluate the district court's finding that termination is in the best interests of the children. 

In a termination-of-parental-rights proceeding, the best interests of the child are paramount.  Minn. Stat. § 260C.301, subd. 7.  Three factors guide our review of the district court's finding that termination is in the best interests of the children:  "(1) the child's interests in preserving the parent-child relationship; (2) the parent's interests 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) (citation omitted).  Competing interests include emotional and psychological stability, In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986), and the child's health needs and interest in a stable, safe environment, In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987). 

J.K. argues that the district court's best-interests findings are clearly erroneous because they fail to explain why termination of parental rights is preferred over transfer of permanent custody to a relative.  J.K. contends that the district court misunderstood the implications of a transfer of permanent custody, improperly assuming that a transfer of custody is less permanent than termination of parental rights.  Citing Minn. Stat. § 260C.201, subd. 11(c) (2004), J.K. maintains that a transfer of permanent custody and termination of parental rights are equally viable permanency options.  J.K. also argues that the district court was misguided in its best-interests analysis because, in terminating her parental rights, the district court relied on her stepsisters' statements that they would not care for the children unless they could adopt them. 

J.K. is correct that both transfer of permanent custody and termination of parental rights are permanency options under section 260C.201, subdivision 11(c).  But section 260C.201 expresses no preference between the two options.  Rather, it directs the district court to apply the best-interests analysis when selecting the appropriate option.  See Minn. Stat. § 260C.201, subd. 11(e) (2004) ("In ordering a permanent placement of the child, the court must be governed by the best interests of the child[.]").  Thus, it is within the district court's discretion, guided by the best interests of the child, either to transfer permanent custody to a relative or terminate parental rights.  Neither the subjective interests of J.K.'s stepsisters nor their understanding of the permanency options is an appropriate factor in deciding whether to terminate parental rights unless it bears on the best interests of the child. 

In choosing to terminate J.K.'s parental rights rather than transferring custody of the children to J.K.'s stepsisters or returning the children to J.K.'s care, the district court's primary consideration was the imperative need of each child for stability and a consistent connection with a parental figure.  The district court reasoned that the children "are entitled to permanent, adoptive homes that will provide them stable, satisfactory environments, something they have not experienced while in their mother's custody."  The district court continued:

            Transfer of permanent legal and physical custody of the children to a relative is not in the best interests of the children because the young ages of the children dictate that true permanence will only be served by termination of parental rights and adoption.  Moreover, because the relatives are unwilling to accept the children into their homes under a transfer of legal and physical custody, to do so would not be in the best interests of the children.  It could result in the children being placed outside of the relatives' homes and back into foster care. 

 

                                    . . . .

 

            Transfer of permanent legal and physical custody of the children to a relative does leave the door open to motions to transfer custody back to [J.K.]. . . .  The fear by the relatives and the children of future litigation and the potential future change in custody is stress and instability that the children should not be subjected to.  Therefore, to transfer custody of these children is not the most permanent, stable, consistent option for the children. 

 

The district court ultimately concluded that "[g]iven the need for permanence and stability for the children, it is in the children's best interest to be placed for adoption rather than transferring legal and physical custody to a relative."   

The record supports these findings.  Given J.K.'s lack of parenting skills, emotional maturity, and motivation to improve her parenting ability, which the record before us illustrates, the district court correctly determined that returning the children to J.K.'s custody is not in the best interests of the children.  As to permanent transfer of custody, L.K.'s and C.M.'s therapists stressed the children's need for permanence, concluding that the children require a consistent connection with a parental figure and a stable home life to sustain psychological health.  Both therapists opined that remaining with J.K.'s stepsister is in the children's best interests.  The experts recommended against a transfer of custody because future attempts by J.K. to regain custody, whether successful or otherwise, could renew the children's anxiety. 

J.K.'s contention that the district court terminated her parental rights only because of her stepsisters' interests is not supported by the record.  The district court's findings as a whole demonstrate that the district court fully understood the option of transferring permanent custody, but rejected it as not in the best interests of the children.  The district court determined that, above all, the children require "the most permanent, stable, consistent option."  After weighing both permanency options, the district court exercised its sound discretion when selecting the one that it found to be in the best interests of L.K., C.M., J.Z.J., and A.Z. 

            Affirmed.