In the Matter of the Welfare of the Child of: B.W. and L.W., Parents.

In the Matter of the Welfare of the Child of: B.W. and L.W., Parents. A07-582, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and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

A07-582

 

 

In the Matter of the Welfare of the Child of:
B.W. and L.W., Parents.

 

 

Filed August 28, 2007

Affirmed

Parker, Judge*

 

St. Louis County District Court

File Nos. 69DU-JV-06-808, 69-J3-05-650165

 

 

Melanie S. Ford, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 320 West Second Street, Room 403, Duluth, MN 55802 (for respondent St. Louis County Social Services Department)

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN 55802-1613 (for appellants B.W. and L.W.)

 

Jean E. Johnson, 394 Lake Avenue South, Suite 301, Duluth, MN 55802 (for respondent M.M.)

 

Athena Mangan, P.O. Box 16416, Duluth, MN 55816 (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

 

PARKER, Judge

 

            In December 2004, seven-year-old J.W. was removed from the home of his adoptive parents, appellants B.W. and L.W., after L.W. struck him with a belt.  B.W.'s and L.W.'s parental rights were subsequently terminated in February 2007.  On appeal from termination of their parental rights, B.W. and L.W. argue that (1) termination was clearly erroneous due to the lack of an out-of-home placement plan and (2) the record does not contain clear and convincing evidence to support termination under the two statutory bases found by the district court.  Because the evidence clearly and convincingly supports the district court's findings, we affirm.

D E C I S I O N

I.

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); see also In re Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).  "Interpretation of a statute involves a question of law, which is subject to de novo review."  In re Welfare of Children of R.W., 678 N.W.2d 49, 54 (Minn. 2004).

On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  We closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  A reviewing court "exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result."   S.Z., 547 N.W.2d at 893.

B.W. and L.W. argue that a reunification plan was not prepared by the county, not filed with the district court, and not approved by the district court.  Minn. Stat. § 260C.212 (2006) requires that within 30 days after the out-of-home placement of a child, a case plan must be prepared by the county.  The plan should include how the placement is consistent with the best interests of the child, "a description of the problems or conditions in the home of the parent or parents which necessitated removal of the child from home and the changes the parent or parents must make in order for the child to safely return home," and a description of the services offered to reunify the family.  Minn. Stat. § 260C.212, subd. 1(c). 

            Our supreme court has found that while the case plan "is required in every case," the absence of such a plan does not warrant reversal when case-planning efforts have been an ongoing concern of the county, the parent's lack of cooperation is responsible for the county's failure to construct a plan, and the evidence clearly shows that the parent would not be aided by a written placement plan.  In re Welfare of R.M.M., 316 N.W.2d 538, 542 (Minn. 1982) (analyzing previous version of the statute).  But the failure to provide a timely written plan is reversible error if the parent has not been informed or does not understand the conditions he or she must satisfy to achieve reunification.  See, e.g., In re Welfare of Copus, 356 N.W.2d 363, 366-67 (Minn. App. 1984).

            Here, the district court found that B.W. and L.W. discussed a reunification plan with the social services case worker on several occasions, including at a meeting in their home in January 2005.  The court also found that the county's and guardian's reports to the court incorporate the case plan, including completion of psychological evaluations, attendance at any visitation arranged by social services, cooperation with social services and the guardian ad litem, and J.W.'s continued attendance at therapy.  The district court found that L.W.'s testimony that he had not seen any of these documents was not credible, specifically noting that they had all been faxed to his home at his request. 

            B.W. and L.W. argue that the reports do not constitute a case plan and that they do not address the goals of rehabilitation and reunification.  B.W. and L.W. argue that they cannot constitute a plan because neither they nor J.W.'s guardian ad litem signed the documents as required by Minn. Stat. § 260C.212 and because the plan was not approved and ordered by the court pursuant to Minn. Stat. § 260C.178, subd. 7 (2006). 

            But contrary to their arguments, the reports to the court clearly and succinctly laid out the criteria for reunification.  The report filed in March 2005 for the admit/deny hearing states:

To pursue reunification a preliminary case plan will include:

1)        [B.W. and L.W.] will continue to participate with [Intensive Family Based Services (IFBS)];

2)        [B.W. and L.W.] will participate in family therapy with [J.W.];

3)        [J.W.] will participate in individual therapy;

4)        [B.W. and L.W.] will cooperate with Social Services and the GAL;

5)        [B.W. and L.W.] will maintain consistent visitation with [J.W.], visiting with him at the arranged times set up by the social worker.

 

In its subsequent order, the district court ordered B.W. and L.W. to continue participating with IFBS services and comply with visitation arranged by social services, and that J.W. would continue in individual therapy.  The district court also ordered that "Social Services shall complete a reunification plan."  

B.W. and L.W. argue that by ordering social services to complete a reunification plan, the court acknowledged that the plan proposed by the social worker in her March report to the court did not comply with the statutory requirements of a plan.  

Respondent argues that although the case plan may not have followed the standard form and been signed by the required parties, it adequately communicated the requirements to the parties.  As B.W. and L.W. acknowledge in their brief, despite a lack of technical compliance with the requirements for a valid case plan, "the family knew what it needed, and did it."  Therefore, it appears that any errors with respect to the filing of a case plan are harmless because B.W. and L.W. had appropriate notice of what was expected of them through the orders of the court and the reports filed by the county detailing the plan for J.W.  Cf. In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (concluding that termination of parental rights need not be reversed where admission of certain evidence was harmless), review denied (Minn. Mar. 29, 1995).

II.

B.W. and L.W. argue that the district court's bases for termination of their parental rights are unsupported.  District courts may order the involuntary termination of parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2006). The petitioner must prove one or more of the statutory criteria by clear and convincing evidence.  In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).  Because a child's best interests are the paramount consideration in termination of parental rights proceedings, the district court may not terminate parental rights unless it is in the child's best interests, even if one or more of the statutory criteria for termination exist.  In re Welfare of D.J.N., 568 N.W.2d 170, 177 (Minn. App. 1997).  District courts are required to make clear and specific findings that conform to the statutory requirements, and the evidence must address conditions that exist at the time of the hearing.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

            Here, the district court concluded that termination of B.W.'s and L.W.'s parental rights was supported by two bases, Minn. Stat. § 260C.301, subd. 1(b)(4) (palpably unfit) and Minn. Stat. § 260C.301, subd. 1(b)(5) (failure to remedy conditions leading to out-out-of home placement). 

A.        Reasonable Efforts Towards Reunification

 

B.W. and L.W. argue that the agency failed to make reasonable efforts at reunification and that this failure bars termination of their parental rights under both bases identified by the district court.  Minnesota law requires that a social services agency make "reasonable efforts, including culturally appropriate services, . . . to prevent placement or to eliminate the need for removal and to reunite the child with the child's family at the earliest possible time."  Minn. Stat. § 260.012(a) (2006).

"Reasonable efforts" at rehabilitation are services that "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) (citation omitted), review denied (Minn. July 6, 1990). In considering whether reasonable efforts were made, Minnesota law requires the court to consider whether the services are:

(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.

 

Minn. Stat. § 260.012(h) (2006).  Alternatively, "the court may determine that provision of services or further services for the purpose of rehabilitation is futile and therefore unreasonable under the circumstances."  Id.  The district court's findings must include "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."  Minn. Stat. § 260C.301, subd. 8(1) (2006).

Here, social services facilitated visits with J.W., participation in the IFBS program, and counseling both for J.W. and for B.W. and L.W.  But B.W.'s and L.W.'s actions required termination of the visits.  B.W. and L.W. argue that by terminating visitation, and by terminating counseling for J.W. with Michele Gordon, the court effectively terminated social services' reasonable efforts. 

But the district court terminated Gordon's services to J.W. on the basis of a conflict of interest and replaced Gordon with another psychologist.  J.W. then began to receive individual therapy from Saprina Matheny and Paul Goossens.  B.W. and L.W. argue that the therapy provided by Matheny and Goossens was not geared towards reunification or rehabilitation and instead was only supportive.  However, it appears that such counseling was appropriate at that stage in J.W.'s treatment because the court had ordered that visitation not resume until it became therapeutically appropriate.  

Here, ample evidence supports the determination that resumed visitation was not yet appropriate.  At trial, neither Matheny nor Goossens recommended resumed contact with B.W. and L.W.  Matheny diagnosed J.W. as suffering post-traumatic stress disorder as a result of the abuse by L.W.  She testified that his symptoms included hoarding, outbursts, bed-wetting, hypervigilance, worrying, avoidance, nightmares, and flashbacks and that he displayed anxiety and fear about seeing B.W. and L.W.  In her report, Matheny stated that visits with B.W. and L.W. would likely reinitiate the post-traumatic-stress-disorder symptoms that she was working with J.W. to resolve.  Goossens also expressed concerns about J.W.'s security, heightened anxiety, and fearfulness if he was permitted to resume contact with B.W. and L.W.

B.W. and L.W. argue that the guardian ad litem failed to meet her statutory duties as set out in Minn. Stat. § 260C.163 (2006) and that the social worker admitted it was difficult to come up with a case plan.  But neither of these arguments overcomes the fact that social services provided appropriate services reasonably designed to reunite J.W. with B.W. and L.W.  Furthermore, the district court found that B.W. and L.W. were uncooperative with social services.  In particular, they had their psychological examinations completed by an unapproved, non-clinical evaluator.  As a result, they did not submit evaluations that would provide social services with information that would allow them to responsively provide services.

Thus, substantial evidence supports the district court's finding that reasonable efforts were made by the agency toward B.W.'s and L.W.'s reunification with J.W.  Therefore, the court's findings are not clearly erroneous.

B.        Palpable Unfitness

 

            B.W. and L.W. argue that because they agreed not to use corporal punishment on J.W. or any child, they are not palpably unfit to parent in the reasonably foreseeable future, under Minn. Stat. § 260C.301, subd. 1(b)(4).  Minn. Stat. § 260C.301, subd. 1(b)(4), permits termination of parental rights upon a finding that "a parent is palpably unfit" because of a consistent pattern of conduct or conditions "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."  Thus, the conduct supporting termination must exist at the time of termination and be likely to continue into the reasonably foreseeable future. 

            B.W. and L.W. argue that they have testified that they will not use corporal punishment on J.W. or any child in their care and that therefore the conduct that led to the out-of-home placement will not continue into the reasonably foreseeable future.   They argue that they are "by nature, rule followers," and look to their 30-year history as foster parents as an example.  B.W. and L.W. argue that while they believed corporal punishment was an effective parenting tool, they only used it on their own children but not foster children because the rules prohibited it.  They argue that this establishes that "they will follow the rules and never use corporal punishment on any child ever again."

            But Minn. Stat. § 260C.301, subd. 1(b)(4), looks not only to the physical maltreatment of the child, but also to whether the parent is able to care appropriately for the ongoing mental and emotional needs of the child.  Here, the court found that B.W. and L.W. did not understand the effects of the abuse on J.W. and that they minimized the abusive nature of their conduct.  And J.W.'s therapists recommended that they not be in contact with J.W. because of the detrimental effect it was likely to have on his progress in recovering from his post-traumatic stress disorder.  This evidence clearly and convincingly supports the district court's conclusion that B.W. and L.W. were unable, in the reasonably foreseeable future, to meet J.W.'s needs.  Therefore, Minn. Stat. § 260C.301, subd. 1(b)(4), supports termination of B.W.'s and L.W.'s parental rights.

            Affirmed.

 

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