In the Matter of the Welfare of the Child of M. C., Parent.

In the Matter of the Welfare of the Child of M. C., Parent. A07-98, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-98

 

In the Matter of the Welfare of the

Child of M. C., Parent.

 

Filed August 21, 2007

Affirmed

Halbrooks, Judge

 

Hennepin County District Court

File No. 27-JV-06-4234

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

Michael O. Freeman, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent)

 

Eric S. Rehm, 202 US Bank Building, 301 West Burnsville Parkway, Burnsville, MN 55337 (for guardian ad litem)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant M.C. challenges the district court's decision to terminate her parental rights, arguing that (1) the district court denied her right to procedural due process by adopting verbatim respondent's proposed findings of fact and (2) the district court erred in determining that clear-and-convincing evidence supports both the statutory grounds for termination and the conclusion that termination is in the child's best interests.  We affirm.

FACTS

            Appellant M.C. is the mother of daughter D.S., born June 5, 2005.  Paternity has not been established. 

On August 18, 2005, the Hennepin County Mental Health Center issued a written diagnostic assessment of appellant.  During the assessment, appellant reported that she had a history of manic depression, attention deficit hyperactivity disorder, oppositional disorder, and attachment disorder.  Appellant indicated that she had previously spent three years in a residential treatment facility where she was medicated, using Topamax and Celexa.  Appellant reported that during her adolescence she ran away from home several times and was detained by the police on a number of occasions, including after getting into physical altercations with law enforcement.  Appellant also stated that her father physically, sexually, and emotionally abused her as a child; that she had lived in 30 foster homes, orphanages, and group homes; and that she had been hospitalized more than 30 times for suicidal behavior and substance abuse.  Appellant reported that "she used to go ‘real crazy,'" "that there was a time when she saw little cars falling out of the sky," and that she gets frustrated when D.S. cries, although she denied ever physically abusing D.S.

On August 30, 2005, the Hennepin County Human Services and Public Health Department (department) filed a child in need of protection or services (CHIPS) petition alleging that on August 26, 2005, appellant left D.S. with a woman she did not know and then failed to pick up D.S. as she had arranged.  The woman took D.S. to the police station, and D.S. was placed on a 72-hour police health-and-welfare hold.  On August 31, 2005, the district court ordered D.S. to remain in out-of-home placement. 

Appellant completed cognitive testing on November 19, 2005, that showed a full scale IQ of 87, placing her in the low-average range of ability.  In addition, the test results indicated that appellant had "a working memory and processing speed solidly within the average range of ability, but that she may be experiencing difficulty interpreting social situations and following social scripts."  It was determined that appellant could probably pursue further education at a technical school or community college.

On December 1, 2005, Betsy Bartek of Reuben Lindh Family Services wrote a letter to Hennepin County Child Protection, indicating that appellant had entered the Reuben Lindh Parenting Program, which "is designed to teach basic parenting skills to mothers with developmental disabilities and or mental health concerns."  Bartek stated that while "it was clear that [appellant] cares about [D.S.] . . . it was also apparent that [appellant] lacks basic child development knowledge."  The letter recommended that appellant continue attending the parenting program for additional assessment and instruction. 

Hennepin County Aging and Disability Services issued a parenting assessment of appellant on December 2, 2005.  The assessment stated that appellant "has poor coping skills and she is emotionally immature."  With regard to appellant's child-care skills, the assessment stated that while "[i]t is evident that [appellant] loves [D.S.,] . . . is motivated to get [D.S.] back[,] [and] interact[s] very lovingly and nurturing toward [D.S.]," appellant "seems to have a difficult time with the more abstract thinking in her parenting."  The report stated that appellant "appears to be unaware of how her unhealthy behavior and lack of judgment impacts [D.S.]" and therefore concluded that appellant "cannot provide a safe environment for [D.S.]."  The assessment recommended that appellant: (1) reside in supervised living in order to develop parenting skills; (2) be re-evaluated for potential psychotropic medications; (3) attend a parenting program; (4) attend a women's group addressing sexual behavior and prostitution; and (5) not be allowed to take D.S. on out-of-town unsupervised visits.

            On December 5, 2005, D.S. was adjudicated to be a child in need of protection or services, and her legal custody was transferred to the Department.  At the time, appellant agreed that she needed additional parenting skills and support in order to safely and properly care for D.S. "given the concerns outlined in the parenting assessment and . . . her own history as a child."  The district court also found that D.S. was in need of protection because appellant was homeless.  Therefore, the district court ordered appellant to fully comply with and successfully complete her case plan and ordered that D.S. continue in out-of-home placement, which the district court determined was in D.S.'s best interests.  With regard to appellant's case plan, the district court specifically ordered that appellant (1) complete the pending mental-health evaluation and follow all recommendations; (2) complete all requirements for admission to the Oakwood residential program and after admission comply with all of the program rules; (3) follow the recommendations of the previously completed parenting assessment; and (4) participate in the parenting program at Reuben Lindh Family Services.  The district court granted appellant supervised visitation with D.S. two times per week at Reuben Lindh, with the possibility that visits could be expanded as recommended by Oakwood staff.  Finally, the district court concluded that D.S. "shall be returned to [appellant's] care on or before February 26, 2006, in the event that [appellant] has substantially complied with the case plan and corrected the conditions which led to the placement."      

            On March 16, 2005, the Department filed a petition to terminate appellant's parental rights to D.S and to place D.S. under the guardianship and legal custody of the Minnesota Commissioner of Human Services unless an identifiable and able relative desired custody of D.S.  Although appellant was initially denied acceptance into Oakwood due to her history of assaultive behavior, appellant was eventually accepted and entered Oakwood on March 23, 2006.

On July 21, 2006, Oakwood issued a discharge summary for appellant.  The summary indicated that appellant voluntarily left Oakwood to return to Chicago on July 13, 2006, "despite encouragement from the group and from staff to wait at least overnight to think about her decision."  Appellant told Oakwood staff that she "want[ed] to give [D.S.] up for adoption" because she could not continue with her attempts at reunification.  After staff encouraged her to reconsider, appellant stated, "No . . . I need to do this now and get to my momma's house.  I can't take care of my baby the way I need to, I feel she would be better with [the foster family]." 

At the time of her departure from Oakwood, appellant "had difficulty consistently controlling her anger," "had on-going difficulty following [D.S.'s] routine that was provided by the foster parent," and had become "more resistant to the Oakwood program," disagreeing with the program's recommendations for visitation and talking about "hating it [t]here."  Oakwood staff also noted concerns regarding appellant's overnight visitations with D.S., including "lack of proper feeding and nutrition for [D.S.], spending her visiting time going to the mall, arriving late from outings, and not complying with house rules about visitors."  

            The district court subsequently ordered appellant's parental rights to be terminated under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (7), (8) (2006), and appointed the department as guardian and legal custodian of D.S.  The district court found that appellant "has failed to substantially complete her [c]ourt-ordered case plan and correct the conditions leading to out-of-home placement."  Specifically, the district court found that appellant was unable to be successfully reunified with D.S. for a number of reasons, including her difficulties budgeting and managing money; accepting feedback with regard to parenting; consistently controlling her anger and emotions; and following D.S.'s eating and sleeping routine.  The district court noted that since leaving the Oakwood program, appellant has returned from Chicago and has been meeting with her social worker.  But the district court found that appellant is not in a supportive, supervised program, is not participating in parenting services, and reports seeing a therapist, although she cannot remember the person's name. 

In addition, the district court found that it was in D.S.'s best interests for parental rights to be terminated because:  (1) D.S.'s return to appellant was not possible in the reasonably foreseeable future; (2) there are no relatives available to accept a transfer of legal custody of D.S.; and (3) D.S. deserves permanency and could be adopted.  Further, the district court found that the department "ha[d] made reasonable efforts to offer [appellant] services to assist in correcting the conditions that led to the out-of-home placement," including a psychological-assessment update, comprehensive parenting assessment, parenting program, medication management, housing assistance, supervised living at Oakwood, supervised visitation, early-childhood special-education screening, employment assistance, transportation services, shelter care, non-relative foster home, kinship, a child-services worker, and case-management services. 

            Appellant subsequently moved for a new trial, arguing that the district court's findings of fact are not adequately supported by the record and do not support the termination of her parental rights.  The district court denied appellant's motion for a new trial.   

            This appeal follows. 

D E C I S I O N

I.

            On appeal, this court "afford[s] great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A proper termination order includes detailed, specific, and sufficient findings that provide an appellate court with a meaningful opportunity for review.  In re Welfare of M.J.L., 582 N.W.2d 585, 588 n.3 (Minn. App. 1998).  A district court's "verbatim adoption of the state's proposed findings and conclusions, standing alone, does not constitute grounds for reversal."  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002) (citing Dukes,621 N.W.2d at 259).  But "it is preferable for a court to independently develop its own findings," Dukes, 621 N.W.2d at 258, and this court may reverse when the district court adopts verbatim a party's findings without providing the other party an opportunity to review the proposed findings or to submit proposed findings on their own behalf prior to the verbatim adoption.  Pederson, 649 N.W.2d at 164; see also In re Children of T.A.A., 702 N.W.2d 703, 707 n.2 (Minn. 2005) (stating "[w]hile we have declined to adopt a blanket prohibition on the practice, we take this opportunity to repeat that our preference is for a court to independently develop its own findings" (quotation omitted)). 

In Dukes, the Minnesota Supreme Court stated that when reviewing a district court's verbatim adoption of one party's proposed findings, a court must "heed how the findings were prepared when . . . conduct[ing] a careful and searching review of the record."  621 N.W.2d at 258.  The supreme court further stated: "We will devote special care not in the test that we apply to a particular finding of factindividual findings will only be reversed if clearly erroneousbut in the volume of evidence we sift in judging the correctness of such findings."  Id. at 258-59 (quotation omitted).  If, after review, this court concludes that the findings are not clearly erroneous, "the verbatim adoption, standing alone, will not be sufficient grounds for reversal."  Id. at 259.

Here, the district court allowed both parties to submit proposed findings and decided to adopt the department's findings "because after reviewing the testimony and the exhibits, [the court] found that those findings most accurately represented the evidence that took place at trial."  We conclude that the findings are not clearly erroneous, as they are sufficiently supported by the record.  Moreover, appellant was given an opportunity to review the department's submissions and to submit proposed findings on her own behalf.  Appellant was also granted a hearing on her motion for a new trial, with an opportunity for oral argument.  Accordingly, the verbatim adoption of the department's proposed findings, standing alone, is not grounds for reversal. 

Appellant also argues at length that the findings misstate the record evidence and that the record supports alternative findings.  But the fact "[t]hat the record might support findings other than those made by the [district] court does not show that the court's findings are defective."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000); see Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the [district] court's findings," and that its "duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"). 

II.

            "There is perhaps no more grave matter that comes before the court than the termination of a parent's relationship with a child."  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).   Because of the interests at stake, "[w]e review terminations 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).  In termination-of-parental-rights cases, the terms "substantial evidence" and "clear and convincing evidence" are interchangeable.  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996).  We give "[c]onsiderable deference" to the district court's decision because the district court is in the best position to evaluate the credibility of witnesses.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  But even though we defer to the district court's findings, this court exercises great caution in proceedings to terminate parental rights.  In re Welfare of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).

            The district court may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2006).  "In reviewing a decision to terminate parental rights, the appellate court determines whether there is clear and convincing evidence to support at least one statutory ground for termination and, if so, whether termination is in the best interests of the child."  T.A.A., 702 N.W.2d at 708.  The district court's findings must be clear and specific to the statutory requirements with evidence addressing conditions at the time of the hearing.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  "If statutory grounds for termination exist and termination is in the best interests of the child, the appellate court then determines whether there is clear and convincing evidence that the county made reasonable efforts to reunite the family."  T.A.A., 702 N.W.2d at 708.  

            A.       

            Here, the district court found four statutory grounds for involuntary termination of appellant's parental rights.  But "[o]nly one ground must be proven for termination to be ordered."  T.A.A., 702 N.W.2d at 708.  We conclude that the district court's findings support termination of appellant's parental rights because reasonable efforts have failed to correct the conditions for D.S.'s out-of-home placement.  Accordingly, we largely decline to discuss the district court's remaining statutory grounds for termination.     

Parental rights may be terminated under Minn. Stat. § 260C.301, subd. 1(b)(5) (2006), based on clear-and-convincing evidence "that following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement."  Reasonable efforts to correct the conditions leading to out-of-home placement have presumptively failed if:

            (i) . . . In the case of a child under age eight at the time the [CHIPS] petition was filed . . . the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;

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

            (iii) conditions leading to the out-of-home placement have not been corrected . . . ; and

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

 

Id. 

"Efforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure."  In re Welfare of J.H.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  Such help must go beyond generic, required programs to include assistance focused to the parent's specific needs.  In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987); see also In re Welfare of J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986) (stating that the assistance must "go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help"). 

            This failure to correct must be expected to "continue for a prolonged, indeterminate period."  In re Welfare of D.F.B., 412 N.W.2d 406, 410 (Minn. App. 1987) (quoting In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980)) (quotation marks omitted), review denied (Minn. Nov. 18, 1987).  A parent who "completely failed to cooperate with the county's plans and instructions" demonstrates sufficient failure to correct.  In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985).  In contrast, a parent who has successfully completed many conditions of the care plan, and failed to correct others only upon poor legal advice, does not justify termination.  In re Welfare of M.H., 595 N.W.2d 223, 228 (Minn. App. 1999).

            Here, D.S. was put in out-of-home placement after appellant admitted that she needed additional parenting skills and support to safely and properly care for D.S.  The district court ordered that appellant fully and successfully comply with her case plan, which required appellant to:  (1) complete a mental-health evaluation and follow all recommendations; (2) complete all requirements for admission to Oakwood and after admission comply with all rules of the program; (3) follow the recommendations of the completed parenting assessment; and (4) participate in the parenting program at Reuben Lindh.  The record indicates that the department made "reasonable efforts to offer [appellant] services to assist in correcting the conditions that led to the out-of-home placement," including a psychological-assessment update, comprehensive parenting assessment, parenting program, medication management, supervised living at Oakwood, supervised visitation, early-childhood special-education screening, employment assistance, transportation services, shelter care, non-relative foster home, kinship, a child-services worker, and case-management services. 

But the record further shows that appellant did not comply with all aspects of her case plan and that the department's reasonable efforts failed to correct the conditions leading to the child's out-of-home placement.  Appellant voluntarily left Oakwood on July 13, 2006, to return to Chicago "despite encouragement from the group and from staff to wait at least overnight to think about her decision."  At that time, appellant "had difficulty consistently controlling her anger" and had become "more resistant to the Oakwood program," disagreeing with the program's recommendations for visitation and talking about "hating it [t]here."  Appellant also failed to comply with Oakwood's house rules regarding visitors.  As a result, appellant had not substantially completed all of Oakwood's requirements when she left.  In addition, since returning from Chicago, appellant has been allegedly meeting with her social worker, Edward Biren, but is not enrolled in a supportive supervised program and is not participating in parenting services, despite the fact that her spot at Oakwood was still available after her return from Chicago.

            Accordingly, we conclude that there is clear-and-convincing evidence to support the district court's termination of appellant's parental rights under section 260C.301, subdivision 1(b)(5), because reasonable efforts failed to correct the conditions leading to D.M.'s out-of-home placement.     

B.       

            Next, we must determine whether termination is in the best interests of D.S.  T.A.A., 702 N.W.2d at 709.  Minn. Stat. § 260C.301, subd. 7 (2006), provides that "[i]n any proceeding under this section, the best interests of the child must be the paramount consideration, provided . . . at least one condition in subdivision 1, clause (b), [is] found by the court."  In making this determination, a presumption exists that the natural parent is suitable to care for his or her child and that it is in the child's best interests to be cared for by the natural parent.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  Even if termination of parental rights would be in the child's best interests, courts are prohibited from doing so if the child's best interests are the sole reason justifying termination.  M.H., 595 N.W.2d at 228.  This court closely reviews the district court's sufficiency of the evidence to determine whether the evidence is substantial.  S.Z., 547 N.W.2d at 893.  A measurement of sufficiency includes that the district court's findings must be clear and specific to the statutory requirements with evidence addressing conditions at the time of the hearing.  Id. 

            In analyzing whether a decision is in the child's best interests, courts "must balance three factors (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child."  W.L.P., 678 N.W.2d at 711 (quotation omitted).  Competing interests include stability, the child's choice among placement alternatives, and the child's health.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

            Here, the district court found that because of appellant's "inability to be successful at Oakwood, her inability to make significant growth in her parenting skills, her continued mental health concerns, and noncompliance with [c]ourt-ordered and recommended services, the Department and the Guardian ad Litem believe that return of [D.S.] to [appellant] is not in the child's best interests."  The district court further found that it was in D.S.'s best interests that parental rights be terminated because:  (1) "[t]he return of [D.S.] to [appellant] is not possible within the reasonably foreseeable future"; (2) "[t]here are no relatives available at this time to accept a transfer of legal custody of [D.S.]"; and (3) "[D.S.] deserves permanency and would be free to be adopted."  Accordingly, the district court concluded that there is "clear and convincing evidence that it is in the best interests of [D.S.] that any and all parental rights be terminated."    

            Appellant argues that the district court's findings fail to establish that termination of parental rights is in the best interests of D.S. and that the findings are not supported by clear-and-convincing evidence.  Appellant also argues that D.S.'s competing interest is outweighed by the interest in the parent-child relationship.  

            Indeed, D.S. and appellant have a legitimate interest in preserving the parent-child relationship.  But these concerns are outweighed by the competing interests of D.S.  The record indicates that D.S. would not be returned to appellant in the reasonably foreseeable future due to a number of factors, including appellant's early discharge from Oakwood, her inability to further develop her parenting skills, mental-health concerns, and her refusal to comply with recommended services.  In addition, there are no available relatives willing to accept custody of D.S.  And termination allows D.S. to be adopted, thereby offering D.S. a permanent and stable living environment and a choice among alternatives.  Accordingly, we conclude that the district court's decision to terminate is supported by clear-and-convincing evidence that such a determination is in D.S.'s best interests.   

C.       

            Finally, we consider whether the county made reasonable efforts to reunite appellant and D.S.  T.A.A., 702 N.W.2d at 709.  Appellant does not specifically argue on appeal that the department did not make reasonable efforts to reunite appellant and D.S.  Generally, issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  Nevertheless, we briefly address this issue.    

Minn. Stat. §260C.301, subd. 8 (2006), provides:

In any proceeding under this section, the court shall make specific findings:

                        (1) that reasonable efforts to prevent the placement and to reunify the child and the parent were made including individualized and explicit findings regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family; or

                        (2) that reasonable efforts at reunification are not required as provided under section 260.012. 

 

In determining whether the efforts were reasonable, the district court must inquire into whether the services were relevant to the safety and protection of the child, adequate to meet the needs of the family and child, culturally appropriate, available and accessible, consistent and timely, and realistic under the circumstances.  Minn. Stat. § 260.012(h) (2006). 

            Here, as previously discussed, the district court found that "[r]easonable efforts were made to return [D.S.] home," noting that the department offered appellant a psychological-assessment update, comprehensive parenting assessment, parenting program, medication management, supervised living at Oakwood, supervised visitation, early-childhood special-education screening, employment assistance, transportation services, shelter care, non-relative foster home, kinship, a child-services worker, and case-management services.  The record also shows that appellant was offered her spot at Oakwood after she had returned from Chicago but that she declined to return.  Thus, we conclude that the district court's finding that reasonable efforts were made to reunite appellant and D.S. is supported by clear-and-convincing evidence.     

            Affirmed.

 

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