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

In the Matter of the Welfare of the Child of: S.B. and D.W., Parents. A07-948, Court of Appeals Unpublished Decision, November 27, 2007.

This opinion will be unpublished and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

A07-0948

 

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

 

Filed November 27, 2007

Affirmed; motion denied

Worke, Judge

 

Hennepin County District Court

File No. 27-J4-04-067902

 

Leonardo Castro, Chief Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant S.B.)

 

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487; and

 

Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Karim El-Ghazzawy, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for respondent guardian ad litem Thomas Scallen)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal after a remand in which the district court terminated appellant's parental rights, appellant argues that there was insufficient evidence to support the termination of her parental rights and the finding that termination is in the child's best interests.  Because we conclude that there is sufficient evidence to support both the termination of appellant's parental rights and the determination that termination is in the child's best interests, we affirm.  The motion to strike portions of respondent Hennepin County Human Services and Public Health Department's brief on grounds that it contains documents outside of the record on appeal is denied. D E C I S I O N

            On appeal in a termination proceeding, this court "[is] 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).  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 must "closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).  There must be clear and convincing evidence that at least one statutory ground for termination exists.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see also Minn. Stat. § 260C.301, subd. 1(b) (2006) (listing nine statutory grounds for termination).  If a single statutory basis for termination is affirmable, this court need not address any other statutory basis the district court may have found to exist.  In re Children of T.A.A., 702 N.W.2d 703, 708 n.3 (Minn. 2005).             

Sufficiency of Evidence

            Respondent Hennepin County Human Services and Public Health Department filed a petition to terminate the parental rights of appellant S.B., and D.W., the father of C.B., or, in the alternative, to transfer permanent custody to a suitable third person.  At the time, appellant had failed to comply with any portion of her case plan.  Following a trial, the district court ordered permanent legal and physical custody of C.B. be transferred to his paternal grandmother and denied the petition to terminate parental rights.  The guardian ad litem (GAL) appealed the decision.  This court reversed the transfer of legal and physical custody and remanded for further proceedings "consistent with this opinion as may be appropriate under the facts and the law."  See In re Welfare of Child of S.B., No. A05-2386, 2006 WL 1985617, at *4 (Minn. App. July 18, 2006).  We concluded that it had "not been demonstrated clearly and convincingly that [the paternal grandmother would] be a suitable guardian of [C.B.]."  Id.  The child was then returned to out-of-home placement.    

            In September 2006, an amended petition to terminate parental rights or to transfer permanent custody of C.B. to a suitable third person was filed.  Consistent with both this court's remand for further proceedings "as may be appropriate under the facts," and caselaw stating that a remand is a continuation of the original proceeding, on remand, counsel stipulated to consideration of, and the district court actually considered, "all previously presented evidence."  See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987) (stating "reconsideration of a case on remand (and a subsequent appeal) is a continuation of the original proceedings").  In January 2007, following a trial, the district court granted the petition to terminate parental rights.  The court found that the county had made reasonable efforts to reunify C.B. with appellant and offered services that were relevant to the safety and protection of C.B.  The court further found that C.B. had been in court-ordered out-of-home placement cumulatively for 29 of the previous 44 months, and that C.B. had not been in the care of either parent for 33 of the previous 44 months.  The court also determined that C.B. has special needs and that appellant lacks the knowledge to meet those needs.

            Appellant argues that the district court erred in terminating her parental rights because she is currently compliant with her case plan and because the county failed to make reasonable efforts to reunify her with C.B.  Appellant also argues that the court focused on factors that were in existence at the time the first petition was filed and that the record lacks sufficient evidence to support the determinations that she did not satisfy the duties of the parent-child relationship.  Although the amended petition provides little in the way of facts that arose since the first petition, it clearly sets out appellant's case-plan requirements.  Appellant was required "(a) to complete a chemical health assessment and follow all recommendations; (b) to submit to urinalyses [(UA)]; (c) to participate in parenting education; (d) to participate in an anger management program; (e) to secure safe, suitable housing; and (f) to maintain regular visitation with [C.B.]"  In determining whether appellant has substantially complied with her case plan, we review the conditions leading to out-of-home placement and whether appellant's adherence to the plan has corrected those conditions.  See In re Welfare of P.R.L., 622 N.W.2d 538, 545 (Minn. 2001) (analyzing whether a party has substantially complied with the case plan by considering the conditions leading to out-of-home placement and whether the party's adherence to the plan corrected the conditions). 

              The record shows that C.B. was born with cocaine in his system and that he suffers from attention-deficit-hyperactivity disorder, adjustment disorder with mixed disturbance of emotions and conduct and functional enuresis, depression, anxiety disorder, and reactive attachment disorder of early childhood.  This history supports the court's determination that C.B. is a special-needs child.  The testimony also revealed that while the UAs submitted by appellant in compliance with her case plan were negative, the last UA she provided was in December 2005.  The county candidly acknowledges that it did not present any evidence that other UAs had been requested, but the court was in a position to consider appellant's chemical dependency history.  See In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995) (stating that when deciding whether to terminate parental rights, a district court largely relies on "the projected permanency of the parent's inability to care for [a] child"); see also In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996) (reciting this idea in a case involving a chemically dependent parent).  Appellant was also required to undergo a psychological evaluation and comply with its recommendations, which she completed in June 2006.  The evaluation, scheduled in anticipation of bariatric surgery, diagnosed appellant with bipolar disorder, generalized anxiety disorder, and polysubstance dependence, in remissiona diagnosis the court considered relevant to appellant's ability to successfully parent C.B.  The evaluator recommended that appellant continue to take her medications to stabilize her moods and attend therapy.  The record indicates that appellant followed those recommendations, and that her medications were recently adjusted with the hope of stabilizing her moods.  In addressing the portions of appellant's case plan requiring her to participate in a parenting program and to have regular contact with C.B., the district court, consistent with the record, found that while appellant had regularly visited C.B., she had only recently started a parenting program, despite a referral that was made "some time ago."   

Although appellant has met, or partially met, some components of the case plan, a significant failure of compliance is appellant's inability to find safe and suitable housing for herself and C.B.  At the time of trial, appellant was living with her daughter who was on probation for gross-misdemeanor possession of stolen property and check forgery.  Appellant admitted that she was not a legal tenant in her daughter's townhome because appellant was not listed on the lease.  Additionally, both Sandra Dorn, the child-protection worker assigned to appellant's case, and the GAL testified that they had strong concerns regarding appellant's intent to move to Douglas County.  Appellant has no connections in Douglas County and would have no support system, she has not secured employment, and she has not yet researched available mental-health options.  Indeed, the district court found that appellant had not yet begun individual therapy where she currently lives. 

Dorn further indicated that while appellant was somewhat in compliance with her case plan, she was still recommending the termination of appellant's parental rights because appellant only inconsistently met C.B.'s needs.  Dorn testified regarding appellant's long history of instability and stated that she is not confident that appellant is going to be stable in the future.  Consistent with appellant's admission at trial, Dorn testified regarding appellant's chemical-dependency history, her unstable employment history, and, despite the recent adjustment of appellant's medications, she continues to be unable to stabilize her moods.  Emphasizing appellant's psychological instability, appellant's family stated that if appellant did not get C.B. back, they were concerned appellant would commit suicide, which she had previously attempted in 1992.  Dorn expressed concern that if appellant discontinued her medications, she would become even more unstable and would be unable to effectively parent C.B.  Even on her medications, Dorn doubted whether appellant could parent C.B. reliably and stably.  Dorn also expressed concerns regarding appellant's criminal history, which includes her current probation for felony identify theft and possession of stolen property. 

The GAL testified that appellant did not realize the effect of what has happened to C.B. or his needs, appellant continues to have emotional and psychological issues, and she has a criminal history.  The GAL also testified that C.B. has expressed a desire to stay with his current foster parents, who have stated they would like to adopt C.B.  The GAL believes that the termination of appellant's parental rights is in the best interests of C.B., as C.B. is currently receiving the stability he needs and that should not be disrupted.  Appellant argues that the district court erred in allowing the GAL to testify regarding C.B.'s preference and his possible adoption.  Appellant did not object to the GAL's statements at trial and did not raise the issue in her motion for a new trial; therefore, we decline to address the question.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court will generally only consider matters argued and considered in the court below). 

            While appellant has had some limited success with her current case plan, there are some serious concerns regarding whether the conditions that led to the out-of-home placement will continue for a prolonged or indefinite period.  See In re Welfare of M.D.O., 462 N.W.2d 370, 377 (Minn. 1990) (requiring the party petitioning for termination to prove a consistent pattern of specific conduct or conditions detrimental to the child existing at the time of trial to continue for a prolonged, indefinite period of time).  Despite prescribed medications, appellant continues to have unstable moods, she apparently intends to move to an out-state county where she appears to have no connections, support system, or employment, and has failed to look into mental-health options.  Appellant is also currently on probation for two felony offenses, and if she violates her probation, she could return to prison and deprive C.B. of much-needed stability.  There are also several components of her case plan where appellant has failed to complymost important, her failure to obtain suitable and safe housing.  At the time of trial, appellant was residing with her daughter, who was also on probation, in violation of public-housing provisions.

The district court found that termination was proper, under Minn. Stat.  § 260C.301, subd. 1(b)(8), which provides for termination when a child is neglected and in foster care.  "Neglected and in foster care" is defined as a child

            (a) Who has been placed in foster care by court order; and

            (b) Whose parents' circumstances, condition, or conduct are such that the child cannot be returned to them; and

            (c) Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

 

Minn. Stat. § 260C.007, subd. 24 (2006).  The district court must consider seven factors to determine if a child is neglected and in foster care, including: (1) how long the child has been in foster care; (2) the parent's efforts to change circumstances that necessitated removal; (3) whether the parent visited the child within the three months preceding the filing of the petition; (4) the maintenance of regular contact or communication with the agency or person temporarily responsible for the child; (5) the appropriateness and adequacy of services offered to facilitate a reunion; (6) whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child within the foreseeable future; and (7) the nature and reasonableness of the efforts made by the social services agency to rehabilitate and reunite the family.  Minn. Stat. § 260C.163, subd. 9 (2006).  But the district court need not specifically address each factor if its findings showed consideration of those factors.  In re Welfare of J.S., 470 N.W.2d 697, 704 (Minn. App. 1991), review denied (Minn. July 24, 1991).  C.B. has been in out-of-home placement cumulatively for 29 months from April 2, 2003 to the time of trial, and has not been in the care of either parent for 33 of the 44 months before trial.  The record supports the district court's determination that termination was proper under section 260C.301, subdivision 1(b)(8).  Because the record supports termination on this statutory ground, we need not address the other statutory grounds the district court found existed.  T.A.A., 702 N.W.2d at 708 n.3. 

 

Best Interests

            Appellant also challenges the district court's conclusion of law that termination is in the best interests of C.B.  If one or more of the statutory criteria are met, the court must give paramount consideration to the child's best interests.  Minn. Stat.  § 260C.301, subd. 7 (2006).  At the time of trial, appellant had failed to comply with the requirement that she obtain safe and suitable housing for herself and C.B.  This is a critical factor in appellant providing C.B. with a stable environment.  Appellant has failed to recognize C.B.'s special needs; she stated that she knows C.B. needs therapy, but she is unable to explain or understanding the exact nature of his problems.  While appellant has had some success with some of her case-plan requirements, the record contains sufficient evidence that appellant is still unable to function as a responsible parent and that her parenting deficiencies will continue into the reasonably foreseeable future.  C.B. has also expressed a desire to remain with his current foster family.  The record supports the district court's finding that termination of appellant's parental rights is in C.B.'s best interests.

Finally, appellant moved to strike portions of the brief and appendix of respondent Hennepin County Human Services and Public Health Department, claiming they contain references and documents outside of the record on appeal.  Appellant argues that the termination petition and the 2003 child-in-need-of-protection-or-services order were not introduced into evidence.  These documents are part of the district court file; therefore, they are part of the record on appeal and the motion is denied. 

Affirmed; motion denied.