In the Matter of the Welfare of the Children of: M.W. and D.B., Parents.

In the Matter of the Welfare of the Children of: M.W. and D.B., Parents. A05-2197, A05-2216, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and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

A05-2197

A05-2216

 

 

In the Matter of the Welfare of the Children of:

M.W. and D.B., Parents

 

Filed May 9, 2006

Affirmed

Ross, Judge

 

Crow Wing County District Court

File No. J0-05-50419

 

 

Edward R. Shaw, 722 South Sixth Street, Brainerd, MN 56401 (for appellant D.B.)

 

Shari L. Frey, Erickson, Pearson & Aanes, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for appellant M.W.)

 

Donald F. Ryan, Crow Wing County Attorney, Janine W. LePage, Assistant County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent Crow Wing County)

 

Melanie R. Dotty, P.O. Box 815, Pequot Lakes, MN 56472 (for guardian ad litem Tina Jay)

 

Richard Ohlsen, 417 Laurel Street, P.O. Box 366, Brainerd, MN 56401 (for respondent C.D.)

 

Vicky Pavlacky, P.O. Box 433, Pine River, MN 56474 (guardian ad litem)

 

Considered and decided by Toussaint, Chief Judge Presiding; Ross, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Appellants M.W. (mother) and D.B. (father) challenge the district court's order terminating their parental rights to their children, Q.B. and C.B.  M.W. argues that clear and convincing evidence does not exist in the record to support the termination of her parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), or (8) (2004).  D.B. argues only that the district court committed reversible error by concluding that he waived his right to a court-appointed attorney by waiting until the day of the scheduled hearing to request one.  Because the evidence supports termination of M.W.'s parental rights, and because the district court properly determined that D.B. was not entitled to court-appointed counsel, we affirm.

FACTS

Q.B. was born to appellants, mother M.W. and father D.B., in January 2002.  After being evicted from their Brainerd home in September 2002, appellants took Q.B. to Indiana, where they resided with D.B.'s father until late December.  They then moved into the Michigan apartment of D.B.'s mother, who evicted them two weeks later because she suspected D.B. and M.W. of stealing guns and other items from the apartment.  M.W. (then six-months pregnant with C.B.), D.B., and Q.B. lived in their car for approximately ten days.  Michigan Protective Services intervened and placed Q.B. into protective foster care.  One day later, M.W.'s mother and stepfather, Cynthia and Mark Dieter, arrived in Michigan from their home in Brainerd.  Michigan officials released Q.B. to Cynthia Dieter's custody, and Cynthia and Mark Dieter, M.W., and Q.B. returned to live at the Dieter's home.  D.B. stayed in Michigan. 

A social worker with Crow Wing County Social Services contacted M.W. in January 2003 after receiving the reports from Michigan authorities concerning Q.B.'s January 2003 one-night stay in protective custody.  After meeting with M.W., the social worker determined that no child-protection services were necessary as long as M.W. and Q.B. were living with Cynthia Dieter.  At some time after January 31, Cynthia Dieter, M.W., and Q.B. moved into an apartment in Pequot Lakes.

D.B. returned from Michigan in the spring of 2003 but did not immediately move in with M.W. and her mother.  The Crow Wing County social worker met with M.W. and D.B. and determined that no child-protection services were necessary, but she told them to contact her if they should decide to live together and without Cynthia Dieter.

C.B. was born to M.W. and D.B. in April 2003.  D.B. moved into the Pequot Lakes apartment with Cynthia Dieter, M.W., and the children.  Cynthia Dieter moved out in July.  M.W. did not notify social services that she and D.B. were living together and without Cynthia Dieter.

In December 2003, social services received a report that the living conditions at M.W. and D.B.'s apartment were filthy, that D.B. was using drugs, and that the children were in danger.  A social worker met with appellants at the apartment.  She found the condition of the apartment to be "marginal" and "a general mess" but concluded that the children were not in danger.  The social worker offered M.W. and D.B. voluntary parenting education, house checks, and early-childhood programming.  She also asked appellants to submit to drug screening.  The social worker later testified that M.W. and D.B. were "marginally compliant with [these offered] services."

On April 7, 2004, Pequot Lakes police executed a warrant to search the apartment for stolen property.  D.B. and the children were in the apartment when the police entered.  The police officers first observed a thick haze of marijuana smoke.  They saw garbage, clothes, and soiled diapers strewn about.  Fecal matter was smeared on the walls, crib, and floor.  Police found the stolen property described in the warrant and arrested D.B.  Police determined that the apartment was unsafe for the children and delivered them to the custody of M.W.'s mother, Cynthia Dieter, herself a Brainerd police officer.  M.W. and D.B. were evicted from the apartment, and they moved to Brainerd.

The county filed a petition on April 9, 2004, alleging that the children were in need of protection or services (CHIPS).  After an Emergency Protective Care hearing on April 13, the court ordered the children into the custody of social services and into the care of Cynthia and Mark Dieter, who were issued an emergency foster-care license.  The county developed out-of-home placement plans for both children with the goal to reunite the children with M.W. and D.B.  The plans required that M.W. and D.B. complete psychological and chemical-use assessments, establish permanent housing, provide for the children's medical needs, participate in a parenting-education program, abstain from drug use, and submit to random drug testing.  D.B.'s plan also required that he secure stable employment and remain law-abiding. 

M.W. told the doctor who performed her psychological assessment that Mark Dieter had attempted to sexually abuse her.  The doctor determined that M.W.'s ongoing relationship with D.B. was the primary threat to her and the children.  The same doctor assessed D.B. and determined that he had "an extremely poor prognosis for ever being capable of establishing himself within a constructive parental role" and was "highly unlikely to make changes necessary to ensure the ongoing provision of a safe household for his children."

M.W. and D.B. admitted the allegations in the CHIPS petition, and the court adjudicated the children to be in need of protection or services.  The court ordered that M.W. and D.B. continue to comply with the conditions of the out-of-home placement plans, that D.B. attend Alcoholics Anonymous and Narcotics Anonymous meetings and complete chemical-dependency treatment should he test positive for drugs, and that M.W. participate in individual therapy.  The court ordered both M.W. and D.B. to complete the ParentWorks program, participate in parenting education, and maintain safe, appropriate housing.  The court also ordered that they be allowed unsupervised visitation, including overnight visits in their apartment.  The county later offered at least 16 different social services to appellants.

D.B. was almost immediately diagnosed as being chemically dependent.  He was admitted to a chemical-dependency program but discharged one month later for non-attendance.  He tested positive for drugs three times in May and June 2004, and he refused to submit to drug testing at least nine times between June 2004 and July 2005.  M.W. was not chemically dependent.

M.W. attended the ParentWorks program for approximately one year but was discharged from the program in June 2005, allegedly for failing to make progress.  She was discharged from individual therapy after attending a few sessions in June and July 2004 because she did not settle an outstanding balance due her therapist.  She did not apply for Minnesota Care (which could have provided her with medical coverage for counseling services) or avail herself of the county's offer to help her find other counseling. 

The county determined in August 2004 that M.W.'s case-plan progress was sufficient to justify returning the children to her home on the condition that D.B. not be allowed to return until he tested drug-free.  D.B. tested positive for marijuana, methamphetamine, and cocaine in September 2004, and he refused to submit to any more drug tests.  When the children's guardian ad litem visited M.W.'s apartment after the children were returned, she noted the home was "quite messy" and observed evidence strongly suggesting that D.B. was in the home in violation of the court order.

M.W. lost her job as a home health aide in November 2004, when her employer suspected that she was stealing money and jewelry from clients.  She was evicted from the apartment for failing to pay rent, and the Dieters refused to take her in.  She contacted social services to place the children in respite care.  M.W. specifically requested that the children not be placed with the Dieters, claiming that Mark Dieter was an alcoholic and had sexually abused her.  She repeated these allegations in a parenting support group she attended between late 2004 and June 2005. 

M.W. began work at the Social Security Administration as a clerical assistant in December 2004.  The children were ordered into foster care in January 2005 because of M.W.'s continued homelessness and persistent contact (and occasional cohabitation) with D.B.  The county developed a new out-of-home placement plan that required M.W. to obtain safe housing and allowed her, D.B., and Cynthia Dieter to have supervised visits with the children.  The plan required D.B. to abstain from using illegal drugs, to participate in chemical-dependency treatment, to submit to random drug testing, and to remain law-abiding.  M.W. signed the plan, but D.B. refused.  In January or February 2005, police found M.W. and D.B. sleeping in their car in a parking lot and cited D.B. for possession of the drug paraphernalia that police found in the car.

In March 2005, the county referred M.W. to a financial-assistance program for individuals with a poor rental history.  M.W. did not avail herself of this service and remained mostly homeless, sleeping in her car, in hotels, and with friends.  M.W. and D.B. were arrested on charges arising from the thefts M.W. allegedly had committed as a home health aide.  The criminal complaint alleged that D.B. had sold property that M.W. had stolen.  M.W.'s employer fired her from her job at Social Security because of the arrest.

Meanwhile, the children were transitioned from a foster family to a permanency home.  M.W. informed the county in April that she favored placing the children with the Dieters, and recanted her previous allegations of sexual abuse against Mark Dieter.  In May, M.W. and D.B. moved to Duluth, where they lived with friends in an apartment.  M.W. collected  recyclable materials.

On May 25, 2005, the county filed a petition for termination of M.W.'s and D.B.'s parental rights on various statutory grounds.  D.B. was personally served with a petition and summons on June 8, notifying him that the hearing would occur on June 21, 2005, and detailing the bases alleged for termination of his parental rights.  The summons informed D.B. that he was "required to appear" at the hearing and that his failure to appear would allow the court to sever his parental rights.  The summons was accompanied by an acknowledgement-of-rights form setting out D.B.'s rights and responsibilities as a party, including his right to be represented by an attorney and his responsibility to notify the court administrator should his address change.  The form directed D.B. to designate his request for a court-appointed attorney.  D.B. did not complete and return the form.  Nor did he appear at the June 21 hearing or at a later hearing on August 4.

D.B. finally appeared at the August 11 hearing.  He requested that the court appoint counsel to represent him.  The court recessed the proceeding to allow D.B. to complete an application for court-appointed counsel.  The court determined that D.B. was eligible, but concluded that because there were no attorneys available to represent D.B. that day, it would deem D.B.'s "late application [for counsel] to be a waiver of [his] right to appointed counsel in this matter and [would] proceed with this hearing."  D.B. represented himself at the hearing.

Over the course of the six-day hearing, the court heard testimony from 19 witnesses, including M.W. and D.B., Cynthia and Mark Dieter, and social workers.  The district court specifically disbelieved M.W.'s testimony that she ended her relationship with D.B. and Cynthia Dieter's testimony that she had inherited property with an apartment available for M.W. and the children; the court noted evidence that the property was devised to Cynthia Dieter's brothers, not to Cynthia Dieter.  The court also specifically rejected testimony that M.W.'s family is prepared to provide sufficient support for M.W. and the children.  It observed that Cynthia and Mark Dieter had refused to help M.W. when she was homeless and that M.W. repeatedly alleged that the Dieters abused alcohol and that Mark Dieter had sexually abused her.  In contrast, the court found that the children's permanent-placement family provided a "safe, stable, and loving environment."

The guardian ad litem testified that she believed that Cynthia Dieter had abused her position as a police officer to intimidate her in relation to the termination proceedings.  She testified that Cynthia Dieter had followed her and her family in a squad car, driven back and forth in front of her house after hearings, and had run background checks on her, her husband, and her attorney.  Cynthia Dieter refused to answer these allegations during the hearing, citing her Fifth Amendment right not to incriminate herself.

In a 31-page order containing 93 factual findings, the district court found the evidence sufficient to terminate M.W.'s and D.B.'s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2004), and sufficient to terminate D.B.'s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4).  This appeal follows.

 

D E C I S I O N

M.W. and D.B. separately contend that the district court erred by ordering the termination of their parental rights.  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).  Proof of one statutory basis is sufficient, and in any termination proceeding, the best interests of the child must be the paramount consideration.  Minn. Stat § 260C.301, subd. 7 (2004); Welfare of Children of R.W., 678 N.W.2d at 55 (observing that an appellate court will affirm a termination of parental rights "as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child's best interests"). The court will consider the conditions as they existed at the time of the termination hearing and rely "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 omitted).  We recognize that the district court is in a superior position to assess the credibility of witnesses, and so we give considerable deference to its decision.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

The district court here identified three statutory bases for terminating M.W.'s parental rights: (1) that she has neglected her parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (2) that reasonable efforts have failed to correct the conditions that led to the children's out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (3) that the children are neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8).  The court found that termination of D.B.'s parental rights was justified under the same three statutory bases and also under Minn. Stat. § 260C.301, subd. 1(b)(4) (parent is palpably unfit to be a party to the parent-and-child relationship).  The court found also that termination of M.W.'s and D.B.'s parental rights is in the best interests of the children, following Minn. Stat. § 260C.301, subd. 7.

A.        M.W.'s Neglect of Parental Duties

M.W. challenges the district court's conclusion that termination of her parental rights is warranted by the finding that she neglected to comply with the duties imposed by the parent-child relationship.  A district court may terminate parental rights if it finds

that 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, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child's physical, mental, or emotional health and development, if the parent is physically and financially able, and 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.

 

Minn. Stat. § 260C.301, subd. 1(b)(2).  M.W. argues that the conditions at the time of the termination hearing do not support termination of her parental rights and, in the alternative, that the evidence does not support a finding that the conditions justifying termination at the time of the hearing would continue for a prolonged and indefinite period of time.

M.W. first challenges the district court's finding that she was not able, at the time of the hearing, to provide safe, stable, and appropriate housing for the children.  M.W. notes that she had maintained an apartment in Duluth for three months leading up to the hearing and that she was planning to move to a family-owned apartment after the hearing.  But she shared the Duluth apartment with D.B., who was ordered not to be present at M.W.'s residence until he tested drug-free.  The district court also observed that three court notices sent to M.W. and D.B.'s address in Duluth were returned as undeliverable.  And the court rejected as untrue the testimony that Cynthia Dieter had an apartment house in Ely in which M.W. and the children could live.

M.W. next challenges the district court's finding that she lacked a healthy support system.  But the record demonstrates that M.W. repeatedly accused the Dieters of alcohol abuse and Mark Dieter of actual or attempted sexual abuse.  It is undisputed that they refused to help or house M.W. when she was homeless (and pregnant) in November 2004.  M.W. also argues that the evidence shows that she "was ending her relationship" with D.B. at the time of the termination hearing.  The district court found this incredible, based on M.W.'s testimony that she and D.B. were living together in Duluth on the day before trial.

The district court found that M.W. consistently failed to maintain adequate housing and that she exposed the children to dangerously unsanitary conditions and criminal activity (including drug use) in their home.  The court made numerous findings identifying the unsuccessful social services the county offered to stabilize M.W.'s housing.  The court was unpersuaded that M.W. would comply with her parental duty to provide safe housing.

We conclude that the district court's finding that M.W. neglected to comply with the duties imposed by the parent-child relationship is supported by clear and convincing evidence in the record.  Although there is no evidence that the children were deprived of food or clothing, the record amply demonstrates M.W.'s proven unwillingness to provide safe housing for the children and more generally to provide the "other care and control necessary for the child[ren]'s physical, mental, or emotional health and development," Minn. Stat. § 260C.301, subd. 1(b)(2), because of her continuing association with D.B. and exposure of the children to him.  We are careful to point out that termination based on section 260C.301, subdivision 1(b)(2), is not authorized simply when a parent cannot provide a home, but when a parent can provide a home yet refuses or neglects to do so.  The statute permits termination for the nonprovision of shelter for a child "if the parent is physically and financially able" and correction efforts have and will continue to be fruitless.  Id.  M.W. has not argued that she is physically or financially unable to provide adequate shelter.  So we do not focus on that element except to note that the record suggests that M.W.'s joblessness and evictions and employment misconduct and homelessness are interwoven to suggest neglect rather than inability.

M.W. has continued to associateand periodically livewith D.B., despite the danger he poses to M.W.'s housing and employment prospects and despite the August 2004 court order that D.B. not be present at M.W.'s residence until he produce clean drug-test results, which he has repeatedly not done.  In January 2005, the court ordered the children into foster care because of M.W.'s continued homelessness and persistent contact with D.B.  The court specifically found that the county referred M.W. to an agency that offered her financial assistance to pay rent if she could find an apartment, but that despite this offer, M.W. remained homeless.  M.W. declined repeated social-services offers to assist her to obtain housing, tacitly choosing homelessness, forgoing reunification with the children, and finally relocating to Duluth to live with D.B.  The record shows that M.W. has persistently squandered the opportunity to shelter the children.

As for the projected permanency of M.W.'s neglect regarding care for the children, the district court found that M.W. was living with D.B. in Duluth and that prospects for appropriate housing were not viable.  We acknowledge M.W.'s effort to correct some of the conditions that led to the children's removal, such as attending parenting classes and visiting them regularly in placement.  But we do not reweigh the evidence, and we conclude that the district court's determination that M.W. has neglected her parental duties is supported by clear and convincing evidence in the record and that its underlying findings are not clearly erroneous.

B.        Best Interests of The Children

M.W. argues that the county failed to prove by clear and convincing evidence that it is in the children's best interests for her parental rights to be terminated.  Three factors guide this court's review of the district court's determination regarding the best interests of the children:  "(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).  Competing interests include the child's emotional and psychological stability, and the child's health needs and interest in a stable, safe environment.  Id.; In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).  "Where the interests of parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7.

The district court made several findings concerning the best interests of the children, specifically concluding that their emotional attachment to M.W. and D.B. is diminishing and that the children are in a stable and safe foster environment.  M.W.'s arguments that termination is not in the children's best interests rest almost entirely on her contentionsdiscredited by the district courtthat she has ended her relationship with D.B. and reasonably expects that her family will support her in finding housing and employment in Ely.  The record supports the district court's finding that termination was in the children's best interests.[1]

C.        Court-Appointed Counsel

D.B. argues that the district court committed reversible error by concluding that he waived his right to court-appointed counsel by failing until the day of the hearing to request that counsel be appointed.  Although his argument is not entirely devoid of merit, we conclude that the district court's determination that D.B. was not entitled to appointed counsel does not warrant reversal.

Minnesota Statutes and the controlling juvenile-protection rules establish a parent's right to counsel in a juvenile-protection hearing.  But they leave the decision whether to appoint counsel to the district court's discretion, stating that if the parent desires counsel but is financially unable to employ it, the court "shall appoint counsel" in any case in which the court decides that an appointment is "appropriate."  Minn. Stat. § 260C.163, subd. 3(b) (2004); Minn. R. Juv. Protect. P. 25.02, subd. 2(a).  A related rule provides that the "right [to court-appointed counsel] attaches no later than when the party or participant first appears in court."  Minn. R. Juv. Protect. P. 25.01.

It is undisputed that D.B. did not exercise his right to request a court-appointed attorney by completing the form attached to the summons and petition served on him on June 8, 2005.  He did not appear at the June 21 hearing, and the court postponed the matter solely due to D.B.'s failure to appear.  Nor did he appear at the August 4 hearing.  Two mailings sent to the Duluth address given to the court by D.B. were returned undeliverable, demonstrating that D.B. failed to notify the court of his change of address.  After being served with the summons on June 8, the record shows that D.B. initiated no contact with the court until August 11more than 60 days laterwhen he appeared at the hearing and requested that he be appointed counsel.

As a threshold matter, D.B. may have lost his right to counsel by the time he appeared on August 11.  Rule 25.01 provides that the "right [to court-appointed counsel] attaches no later than when the party or participant first appears in court."  D.B. first appeared in this matterand asserted his right to counselat the third scheduled hearing; we do not read the rule as preserving a party's statutory right to court-appointed counsel for so long as he chooses not to appear at noticed hearings.  The district court observed that although D.B. qualified financially for court-appointed counsel, appointment was not possible as a practical matter because no attorneys were immediately available.  This result followed D.B.'s non-appearances and his continued failure to request appointment of counsel.

We see no abuse of discretion in the district court's decision that appointment of counsel was not appropriate in this case, but we do not come to our conclusion lightly.  Minnesota policy favors the prompt resolution of cases involving termination of parental rights.  See In re Welfare of J.R., Jr.,  655 N.W.2d 1, 5 (Minn. 2003) (observing "our own policy, as reflected by the rules, that [termination] cases in particular need to be expeditiously handled" and that "delay in the termination of a parent's rights equates to a delay in a child's opportunity to have a permanent home and can seriously affect a child's chance for permanent placement"); see also Minn. App. Spec. R. Pract. 1 (requiring that these cases be expedited on appeal).  Although D.B. has a statutory right to court-appointed counsel, we cannot conclude that the district court abused its discretion in determining that D.B.'s right to counsel does not outweigh the requirement that this matter proceed expeditiously, particularly in light of D.B.'s unexcused failure to request counsel prior to the third scheduled hearing.  See Welfare of J.R., Jr., 655 N.W.2d at 5 (holding that mother's failure to timely serve notice of appeal on guardian ad litem was jurisdictional defect requiring dismissal of appeal and "declin[ing] the invitation to elevate the parents' [due-process] rights at the expense of the child's").  We are mindful that D.B.'s decision not to appear at the initial, June 21 hearing, and not to complete the attorney request form between June 8 and June 21 (let alone before August 11 when the hearing finally occurred), was knowing and intentional.  During a colloquy concerning the appointment of counsel, when the district court challenged D.B. about his two failures to appear, D.B. emphasized that his decision not to appear rested on his "choice" between his job and defending his parental rights at the hearing.  Although the statutory right to court-appointed counsel is plainly important when termination of parental rights is at stake, we cannot say that a district court must disregard a parent's cavalier approach to his right to appointed counsel as the court balances the more critical factorthe interests of the children.

Affirmed.

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

[1]We have also reviewed the record as it relates to M.W.'s arguments regarding the alternative bases for termination under Minn. Stat. § 260C.301, subd. 1(b)(5) and (b)(8).  Our review leads us to believe that the district court also did not err in finding alternative support for the termination on those statutory grounds.