In the Matter of the Welfare of the Child of: H.E.P. and M.L.S., Parents.

In the Matter of the Welfare of the Child of: H.E.P. and M.L.S., Parents. A06-1013, A06-1020, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A06-1013

A06-1020

 

In the Matter of the Welfare of the Child of:

H.E.P. and M.L.S., Parents.

 

Filed December 5, 2006

Affirmed in part and remanded in part Hudson, Judge

 

Lake County District Court

File Nos. 38-J6-03-050095, 38-JV-05-548, 38-J5-05-050013

 

Russ Conrow, Lake County Attorney, Laura M. Auron, Assistant County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, Minnesota 55616 (for appellant Lake County)

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, Minnesota 55802 (for appellant-father M.L.S.)

 

Mikkel A. Long, P.O. Box 3407, Duluth, Minnesota 55803-3407 (for respondent-mother H.E.P.)

 

Mark D. Fiddler, John M. Jerabek, Fiddler Law Office, P.A., 510 Marquette Avenue South, Suite 200, Minneapolis, Minnesota 55402 (for respondent guardian ad litem)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In these consolidated appeals from a termination of the parental rights of father but not mother, the county challenges the district court's refusal to terminate mother's parental rights (A06-1013), and father challenges the termination of his parental rights (A06-1020).  The findings supporting the refusal to terminate mother's parental rights are not clearly erroneous, and we affirm that decision.  But because no statutory basis for terminating father's parental rights was identified, we remand for the district court to readdress whether to terminate his parental rights.

FACTS

The parents' relationship has been abusive for 15 years, the child has witnessed domestic violence by father, and both the child and her pets may have been the subject of violent threats by father.  When the child was removed from the custody of her parents in December 2003, the county petitioned the court to find the child in need of protection or services (CHIPS).  Under a January 2004 agreement, mother admitted two of the allegations in the CHIPS petition.  The child was returned to mother, the county dismissed its remaining CHIPS allegation, and mother agreed not to have contact with father, to get a chemical dependency assessment, and to continue individual therapy and participate in parenting classes.  Father later admitted to the same CHIPS allegations, the requirement that mother have no contact with father was removed from the agreement between the county and mother, and the district court approved the county's agreements with the parents.

            The child was again removed from the custody of her parents in September 2004 and she has been in foster care since.  In February 2005, the county petitioned to transfer permanent legal custody of the child to her maternal grandparents in Massachusetts.  The county also sought and obtained district-court permission to cease efforts to reunite the family.  In July 2005, the county withdrew its request to place the child with her maternal grandparents and the district court reinstated the county's duty to try to reunite the family.  In October 2005, the county petitioned to terminate the parental rights of both parents under Minn. Stat. § 260C.301, subds. 1(b)(2), (4), and (5) (2004). After a trial, the district court terminated father's parental rights but not mother's.  These appeals follow.

DECISION

            On appeal in a termination case, we review "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).  We will affirm a termination if "at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child's best interests."  In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  In making these determinations, we review the record "carefully to determine whether the evidence is clear and convincing[,]" id. (quotation omitted), recognizing that the 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).

I

            The county petitioned to terminate mother's parental rights under Minn. Stat. § 260C.301, subds. 1(b)(2), (4), and (5), alleging that mother failed to abide by the duties of the parent-child relationship, that mother is a palpably unfit parent, and that reasonable efforts by the county have failed to correct the conditions leading to the child's out-of-home placement, respectively.  The district court found that:  (1) the county failed to show that mother is an unfit parent; (2) the county failed to show that mother refused or neglected to carry out her duties as a parent; (3) the county failed to make reasonable efforts to assist mother; and (4) despite the county's lack of reasonable efforts to assist mother, mother substantially complied with the court orders and reasonable requirements set for her.

A.  Palpable Unfitness

            The county challenges the finding that it did not show mother to be a palpably unfit parent under Minn. Stat. § 260C.301, subd. 1(b)(4), which allows termination of parental rights for

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.

 

The record reveals that mother submitted to a drug assessment, which showed that she did not need treatment.  Likewise, the record shows that mother obtained psychiatric treatment.  Mother's psychiatrist testified that mother responded positively to treatment, noted mother and child had a strong bond, stated he saw no reason why mother and child should not have contact with each other, and that such contact would be beneficial in identifying the services that would be most helpful in assisting mother to parent her child.  In addition, mother's therapist testified that mother is a "fit and safe parent[,]" that the child could be gradually returned to mother's care, and that, even considering the child's needs, mother could learn to parent the child effectively.  Further, mother testified that she is not currently living, or in a relationship, with father, that she has no intention of living with father in the future, and that she had expected a reunification plan that did not involve father.  This record shows that the district court did not clearly err in finding that, with reasonable assistance, mother might be able to improve her parenting "in the foreseeable future."

B.  Reasonable Efforts

            Terminating parental rights because a parent failed to abide by the duties of the parent-child relationship requires the county to make reasonable efforts to reunite the family.  Minn. Stat. § 260C.301, subd. 1(b)(2).  The same is true for terminating parental rights because reasonable efforts failed to correct the conditions leading to the child's out-of-home placement.  Minn. Stat. § 260C.301, subd. 1(b)(5).  The county challenges the finding that it failed to make reasonable efforts to assist mother, arguing that while its efforts were reasonable, the parents were not willing to adhere to their case plan and cooperate with a chemical-dependency counselor.

            Whether providing services constitutes "reasonable efforts" depends on the nature of the problem presented, the duration of the county's involvement, and the quality of the county's effort.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996); In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  The provided services "must go beyond mere matters of form so as to include real, genuine assistance."  Id.  Here, the record shows that the county initially offered a significant number of services as part of the parents' case plans and that a county chemical-dependency counselor testified that the parents refused to keep appointments for a chemical-dependency assessment set for them.  The district court, however, determined that the county's efforts were not reasonable, noting (1) mother did submit to a drug assessment, albeit one conducted by a qualified assessor of her choosing, rather than the county's; (2) the county's rejection of mother's assessment because it did not occur within the 15-day window described in the order directing the assessment was, on this record, unreasonable; (3) the county acted unreasonably in refusing to establish a home treatment plan for mother separate from the plan for father, as mother requested; (4) when the county moved to be relieved of its duty to provide services to reunify the family, the county failed to inform the district court that mother's chemical dependency assessment indicated that she did not need treatment and that she was involved in separate psychological and psychiatric counseling programs; and (5) it regretted making findings about mother's lack of effort in its prior order relieving the county of its duty to make reasonable efforts to reunite the family and that, "on the basis that as the evidence has developed subsequent to such time, it is clear that Mother had made substantial efforts at complying with the earlier established requirements, and that the County failed to accurately report their knowledge of Mother's efforts."

That the communication difficulties alluded to by the district court existed is supported by testimony from mother's psychotherapist and her psychiatrist, who both stated that the county did not maintain regular contact with them regarding mother's progress.  Mother's psychiatrist further testified that, from a conversation with one county worker occurring shortly after the child had been removed, he "learned . . . that the County had very little expectation for . . . [mother] ever to be able to comply" with her case plan or to meet the county's standards, and he concluded that the county was "basically . . . moving on [and that mother] was out of the plan."  The psychiatrist's inference that the county had, for all practical purposes, terminated substantive reunification efforts is consistent with the fact that in the 20 months that the child was in foster care, the county set up no visits with mother, despite expert opinions that mother could parent the child.  On this record, the finding that the county did not make reasonable reunification efforts regarding mother is not clearly erroneous.  And because a lack of reasonable efforts precludes terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), we affirm the refusal to terminate mother's parental rights on those grounds.

C.  Best Interests

            The paramount consideration in a termination matter is the child's best interests.  Minn. Stat. § 260C.301, subd. 7.  Even if a statutory basis for termination is present, termination is inappropriate if it is not in the child's best interests.  In re Welfare of M.P., 542 N.W.2d 71, 7475 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 723 (Minn. 1998).  Evaluating a child's best interests requires considering the child's interest in preserving the parent-child relationship, the parent's interest in preserving the relationship, and any competing interest of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests of a child may include emotional and psychological stability, the child's health needs, and the child's interest in a stable, safe environment.  In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986); In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).

            Consistent with mother's testimony, the district court found mother acted in what she thought were the child's best interests.  We reject the county's challenge to this finding; it argues, essentially, that the district court should not have believed mother's testimony.  We defer to district court credibility rulings.  L.A.F., 554 N.W.2d at 396.

            We also reject the county's argument that the district court did not make adequate findings regarding the child's best interests.  The district court found that the child's best interests would be met by giving mother a chance to demonstrate whether, with adequate assistance, she can care for her child, and its memorandum shows that it balanced the R.T.B. and J.J.B. criteria.  The finding that mother should be given a chance to demonstrate whether, with adequate assistance, she can care for her child is consistent with the findings that the county did not act in the child's best interest, chose to not contact mother and her health-care professionals, and that mother's mental-health professionals noted a strong bond between mother and the child.  Indeed, the guardian ad litem's March 16, 2006 report recommended against terminating mother's parental rights.  Under these circumstances, the findings regarding the child's best interests are adequately supported by the record.  We affirm the district court's best-interests determination regarding mother.

D.  Massachusetts Records

            Substantial documentation was generated by the state of Massachusetts when, at the county's request, it investigated and rejected the possibility of placing the child with her maternal grandparents in Massachusetts.  The documents were later released to the child, the parents, and the grandparents, and a copy of the documents was sent to the Minnesota district court.  The district court, however, refused to consider the documents in the termination proceeding.  Alleging that the documents contain information contrary to the district court's findings, the county argues that the district court committed "clear error" by refusing to consider them.  But the district court's determinations that mother is not a palpably unfit parent and may be able to correct her parenting problems in the reasonably foreseeable future, that the county failed to make reasonable efforts to reunite the family, and that termination is not in the child's best interests, could not have been impacted by the Massachusetts proceedings addressing the propriety of placing the child with her maternal grandparents.  Therefore, the district court's refusal to terminate mother's parental rights could not have been affected by information in the Massachusetts documents, and we do not further address the county's argument on this point.

II

            A child's best interests are not a sufficient basis to terminate parental rights; termination also requires a determination that clear and convincing evidence supports the existence of at least one statutory basis for termination.  R.W., 678 N.W.2d at 5455.  Here, the district court failed to identify a statutory basis for terminating father's parental rights and found the existence of none of the statutory bases for terminating his parental rights to be proved by clear and convincing evidence.  We remand for the district court to readdress the propriety of terminating father's parental rights, and to make any findings necessary to support its determination, including, if necessary, (1) identification of one or more statutory bases for any termination of father's parental rights; (2) findings specifically addressing the statutory criteria of any statutory basis invoked to terminate father's parental rights; (3) a determination of whether those statutory criteria were proved by clear and convincing evidence; and (4) whether termination is in the child's best interests.

            Affirmed in part and remanded in part.