In the Matter of the Welfare of the Child of: N.H. and R.G., Parents.

In the Matter of the Welfare of the Child of: N.H. and R.G., Parents. A07-1106, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and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
A07-1106
 
In the Matter of the Welfare of the Child of:
N.H. and R.G., Parents.

 

Filed December 4, 2007

Reversed

Ross, Judge

 

Blue Earth County District Court

File No. JV-06-1863

 

Paul E. Grabitske, Eskens, Gibson & Behm, 115 East Hickory Street, Suite 200,  P.O. Box 1056, Mankato, MN 56002-1056 (for appellant)

 

Ross E. Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Blue Earth County)

 

Tami L. Peterson, P.O. Box 1056, Mankato, MN 56002-1056, (for respondent Mother)

 

Kristine MacLean, P.O. Box 83, Mankato, MN 56002-0083 (for respondent grandmother)

 

Debi Cumming, 501 South Minnesota Avenue, P.O. Box 496, St. Peter, MN 56082-0496 (guardian ad litem)

 

 

Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Appellant father R.G. challenges the district court's order terminating his parental rights to his daughter.  This appeal requires us to decide whether the district court abused its discretion when it granted Blue Earth County's trial-day motion to amend its petition to add to the previously stated bases to terminate parental rights.  We must also decide whether the record contains clear and convincing evidence supporting the order to terminate R.G.'s parental rights.  Because R.G. was given virtually no notice of the county's amendment and had no time to modify his defense, the county's amendment to the petition should not have been allowed.  Because the county made no effort to reunify father and daughter, the record lacks clear and convincing evidence supporting termination of R.G.'s parental rights.  We therefore reverse.

FACTS

This appeal arises from a district court order terminating R.G.'s parental rights to his three-year-old daughter, J.G.  In June 2006, R.G. was incarcerated for nine months after the district court revoked his probation for failing to give his probation agent five days' notice of his change of address.  The underlying crime giving rise to his probation was criminal-sexual conduct in the third degree based on R.G.'s sexual relationship with a 15-year-old girl when he was 19 years old.

R.G. left his daughter in the care of his mother, K.S., when he was incarcerated for the violation.  Later, when Blue Earth County received a report that K.S. appeared to be intoxicated while J.G. was in her care, a detective found that K.S. had an active warrant and he took her into custody.  The county therefore also took custody of J.G. and placed her in foster care.  When K.S. was released from jail, she verbally confronted the child-protection case manager, which resulted in a charge of fifth-degree assault.  The next day, the county filed a petition alleging that J.G. was in need of protection or services for being without proper parental care because of K.S.'s alleged emotional, mental, or physical disability or state of immaturity and because K.S.'s behavior or home environment was injurious or dangerous to the child.

N.H., who is J.G.'s mostly absent mother, admitted to the allegations in the petition and later consented to voluntarily terminate her parental rights.  The county therefore chose not to pursue any efforts toward reunifying J.G. and N.H.  The county made efforts to reunify J.G. and K.S., but K.S. failed to meet with the child-protection case manager or to participate in supervised visits.

But the county developed no plan to reunify J.G. and R.G.  R.G. attempted to enroll in parenting classes and chemical-dependency treatment, and he sought to complete sex-offender treatment while incarcerated, but the brevity of his incarceration meant that officials did not enroll him.  In December 2006, six months into R.G.'s probation-related nine-month incarceration, the county petitioned to terminate his parental rights.  During the trial, which occurred in April 2007, less than one month after R.G.'s release from the correctional facility, R.G. testified that he was willing to satisfy a case plan, that he was employed and living in housing approved by his probation officer, and that he was willing to follow any limitations on contact between K.S. and J.G.

The child-protection case manager admitted that she had spoken with R.G. only once while he was at the prison, in August 2006.  During that sole opportunity, R.G. inquired about what he could do for J.G. while he was incarcerated.  The case manager told him that she "wasn't sure what he could do [because] he was incarcerated" and gave him a phone number to request a public defender.  When he asked about contacting his daughter, she told him any cards, letters, or gifts for J.G. could be sent to the county to be forwarded to J.G.  Undisputed trial evidence indicates that R.G. made arrangements for J.G. to receive Christmas and birthday presents, but not through the county.  He made the arrangements through K.S., but K.S. refused to allow the child-protection case manager to pick up the gifts and she did not bring them to the county to forward to J.G.  The county does not contend that R.G. had any control over or knowledge of K.S.'s actions regarding the gifts.  The child-protection case manager refused to give J.G.'s address or phone number to R.G. because she was concerned about K.S.'snot R.G.'sbehavior.  The county did not schedule or facilitate any telephone visitation between R.G. and J.G.

The child-protection case manager did not attempt to speak to R.G. again until R.G. initiated a meeting after he was released in March 2007.  The day immediately following his release, R.G. went to the county's offices and asked to see J.G.  The case manager arranged for a supervised visit with J.G., but it was not scheduled to occur before trial would commence two weeks later.

Before the county called its first witness at the termination trial in April 2007, it moved to amend its petition to add abandonment and palpable unfitness as statutory bases to terminate R.G.'s parental rights.  R.G.'s counsel objected because the county gave no notice and an amendment would require a different defense strategy.  R.G.'s counsel first learned of the county's intent to add the palpable unfitness claim in the district court chambers immediately before trial, and it learned of the intended abandonment claim even later, when the county moved for the amendment in open court as the trial commenced.  The district court granted the motion.  R.G. then moved for a continuance, which the district court denied.  After trial, the court granted the county's petition to terminate R.G.'s parental rights, and he appeals.

D E C I S I O N

I

R.G. contends that the district court abused its discretion by granting Blue Earth County's motion to amend the petition to terminate parental rights on the day of trial.  This court reviews the decision to grant or deny a motion to amend a petition for an abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  An abuse of discretion occurs when the court improperly applies the law.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A petition to terminate parental rights may be amended at any time prior to trial, but the petitioner must provide notice of the amendment to all parties and participants and the district court must grant all other parties sufficient time to respond to the amendment.  Minn. R. Juv. Prot. P. 33.04, subd. 1.  Under this rule, the district court "shall grant" the parent time to respond to the amendment, but in this case, the district court denied R.G.'s motion to continue in order to prepare a defense to the amended petition.  The district court was free either to grant the motion to amend but allow R.G. an opportunity to prepare a response, or to deny the motion to amend and leave the county to decide whether to raise the new challenges in a new proceeding.

At oral argument during this appeal, the county explained that its four-month delay in moving to amend the petition was due to its "realization" on the morning of trial that the bases of palpable unfitness and abandonment applied.  The county acknowledges that there was no practical reason not to seek an amendment during the months leading up to trial.  No additional facts came to light to warrant the last-minute amendment.  R.G. received virtually no notice of the palpable-unfitness claim.  And he had no time, let alone sufficient time, to consider additional or different defenses or strategies or to consider new witnesses.  Also at oral argument before this court, the county's counsel conceded that the county gave R.G. no notice or sufficient time to respond to the abandonment amendment, as required by the rule.  We hold that the district court abused its discretion when it granted the motion to amend the petition without allowing R.G. a continuance to prepare a defense to the added bases alleged in the amended petition.  This leaves R.G.'s challenge to the district court's termination decision on the originally pleaded bases.

II

R.G. challenges the district court's decision to terminate his parental rights.  A district court may involuntarily terminate parental rights when clear and convincing evidence supports at least one statutory basis for termination.  Minn. R. Juv. Prot. P. 39.04, subd. 1; 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 grounds for involuntarily terminating parental rights).  The district court may not terminate unless it also finds that the county made reasonable efforts to reunify the family and that termination is in the child's best interests.  Minn. Stat. § 260C.301, subds. 7, 8.  We review whether the court's findings are supported by substantial evidence.  In re Child of A.S., 698 N.W.2d 190, 194 (Minn. App. 2005), review denied (Minn. Sept. 20, 2005).

The district court relied on five independent statutory bases in terminating R.G.'s parental rights, concluding that (1) R.G. abandoned J.G., Minn. Stat. § 260C.301, subd. 1(b)(1); (2) R.G. neglected his parental duties, id., subd. 1(b)(2); (3) R.G. is palpably unfit to be a party to the parent-child relationship, id., subd. 1(b)(4); (4) R.G. failed to correct conditions that led to out-of-home placement, id., subd. 1(b)(5); and (5) J.G. is neglected and in foster care, id., subd. 1(b)(8).  Because the district court abused its discretion when it allowed the county to amend the petition to add palpable unfitness and abandonment, those bases cannot support its decision to terminate.  See Minn. R. Juv. Prot. P. 39.05, subd. 3(a) (limiting termination of parental rights to grounds stated in petition).  The district court also concluded that the county's efforts to reunify R.G. with J.G. were sufficient because reasonable efforts may not be required, stating that, "[he] has committed egregious harm of a child (albeit, not his child)."  We resolve this appeal based on whether the county made reasonable efforts to reunify R.G. and J.G.

R.G. argues that there is insufficient evidence to conclude that the county made reasonable efforts to reunify him with J.G. because the county did not provide him with a case plan, provide him with services to address conditions that caused out-of-home placement of J.G., or communicate with him except for one phone call early on during  his nine-month incarceration.  The argument is well founded.  The county generally must prepare a case plan within thirty days after a child is placed out of the home.  Minn. Stat. § 260C.212, subd. 1(a).  The case plan should describe the reasons for the placement of the child, specific actions the parent can take to correct the problems that led to the placement, the social services to be provided to the parent, and the date on which the child is expected to be returned to the parent.  Id., subd. 1(b).  A case plan is required in every case.  In re Welfare of R.M.M. III, 316 N.W.2d 538, 542 (Minn. 1982).  Failure to provide a timely written case plan can support reversal of a subsequent order to terminate if the parent was not informed of the conditions he must satisfy to reunite with his child.  In re Welfare of Copus, 356 N.W.2d 363, 366-67 (Minn. App. 1984).  When a county fails to provide a case plan on which a district court can evaluate the bases for termination, the clear-and-convincing standard that must be satisfied to terminate parental rights will rarely be met.  Id. at 367.

The county fails to explain why R.G. was not given a case plan except to assert that there was "virtually nothing [R.G.] could do in a case plan."  R.G.'s incarceration at the time of the child-protection proceeding does not relieve the county of its duty to develop a case plan for him.  See In re Children of Wildey, 669 N.W.2d 408, 413 (Minn. App. 2003) ("Case plans for inmates can and have been formed for a long time in Minnesota."), aff'd, modified sub nom., In re Welfare of Children of R.W., 678 N.W.2d 49 (Minn. 2004).  And the brevity of R.G.'s incarceration emphasizes the omission.  R.G. told the child-protection case manager at his first opportunity that he wanted to parent J.G. and he asked what he could do.  The answer should have been provided in the form of a case plan.  At the time of trial after his release, he was living in approved housing, was employed, and expressed that he had been willing to participate in a case plan.

Even without the county's direction or assistance, R.G. had attempted on his own to complete sex-offender treatment and enroll in chemical-dependency treatment and parenting classes while incarcerated.  The parties agree that the brevity of his incarceration caused him to be wait-listed for these programs, and the county admits that it made no effort to assist him to obtain these or any other services or to inform him of what steps he might take for reunification.  At oral argument, the county listed as its reasonable efforts its two unsuccessful and one successful attempt to contact R.G. by phone in August 2006, its mailing of court orders, and its notifying him of the termination hearings.  The county was unable to explain how these efforts could possibly serve the purpose of reunifying R.G. with his child, and no explanation is conceivable.

The county argues alternatively that reasonable efforts would have been futile.  The district court similarly concluded that further effort to reunify R.G. and J.G. would have been futile because of R.G.'s "circumstances."  In some cases, provision of services or further provision of services would be futile, and they would therefore be unreasonable.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  Incarceration may be a factor to consider when weighing futility.  For example, in In re Children of Vasquez, we held that a case plan would be futile when the father would be incarcerated until the children's adulthood for murdering their mother.  658 N.W.2d 249, 256 (Minn. App. 2003).  cf. In re Welfare of Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970) (holding that incarceration alone does not justify termination for abandonment).  But the county has made no argument that this case mirrors Vasquez.  It claims that reasonable efforts would be futile because R.G. subjected a child to egregious harm, focusing on R.G.'s conviction of criminal-sexual conduct in the third degree.  Egregious harm is the infliction of harm on a child so as to demonstrate a grossly inadequate ability to provide minimally adequate care.  Minn. Stat. § 260C.007, subd. 14.  The county does not assert any adverse connection between R.G.'s sexual involvement with a 15-year-old when he was 19 years old, which occurred five years earlier and two years before J.G. was born, and his relationship with R.G.  And there is no assertion that R.G. ever egregiously or otherwise harmed J.G. 

We recognize that a finding of egregious harm may rest on injuries to a child who is not the parent's own child.  In re Welfare of the Child of A.S. & A.M, 698 N.W.2d. 190, 197 (Minn. App. 2005), review denied (Minn. Sept. 20, 2005).  And we realize that pursuant to section 260C.007, subdivision 14, egregious harm includes the type of behavior that led to R.G.'s conviction of criminal-sexual conduct under section 609.344.  If a county intends to rely on egregious harm as a basis to be excused from making reasonable efforts to reunify parent and child, however, it must obtain a judicial determination of egregious harm after it has filed "a petition . . . stating a prima facie case" that the parent subjected a child to egregious harm as defined by statute, or that reunification services would be futile and therefore unreasonable under the circumstances, or other possible bases not relevant here.  Minn. Stat. § 260.012(a)(1) (2006).

But the county here filed no pleading to that effect.  To the contrary, rather than to plead facts that would establish a prima facie showing of egregious harm, the county's termination petition was a check-the-box form that left blank the box that asserts egregious harm as a basis for termination.  And rather than to allege that termination may rest on the fact that R.G. had been convicted of a crime that would establish egregious harm as a matter of law, the petition left that box blank as well.  Not only did the county fail to assert a basis to be excused from providing reasonable services, its petition expressly and affirmatively declared that "Social Services has made reasonable efforts to correct the conditions that have led to the out of home placement."  The petition plainly and exclusively focused on issues related to J.G.'s mother, not to R.G., her father.  Even as the county sought to amend the petition at the outset of the trial, it did not assert egregious harm as a basis for termination or as a basis to be excused from offering reasonable services to R.G.  The record does not support a finding of futility.

Reasonable efforts under Minnesota law demand a case plan.  Without one, R.G. was left to guess what he could do to be reunified with J.G.  And the decision not to provide a case plan for R.G. appears to rest entirely on the county's notion that R.G.'s nine-month incarceration alone justifies permanently severing his parental rights to his daughter.  This failure to provide a case plan is a reversible error.  Welfare of Copus, 356 N.W.2d at 366-67.  Because the county did not give R.G. a case plan, provide services, or communicate with him, the district court could not find by clear-and-convincing evidence that the county exercised reasonable efforts to reunify father and daughter.  And the record fails to support the conclusion that reasonable efforts were futile because of R.G.'s incarceration for failing to report an address change or because of his criminal-sexual conduct conviction.  The district court therefore erred when it concluded that the county made reasonable efforts to reunite the family.

The termination petition here was based on statutory provisions that required the county to make reasonable efforts to reunite R.G. and J.G.  See Minn. Stat. § 260C.301, subd. 1(b)(2) (requiring reasonable efforts by the county to reunite family when statutory ground is neglect to comply with parental duties); id., subd. 1(b)(5) (requiring reasonable efforts when ground is failure to correct conditions leading to out-of-home placement); cf. Children of Vasquez, 658 N.W.2d at 255-56 (excusing county from obligation to provide reunification services when terminating under section 260C.301, subdivision 1(b)(8), neglected and in foster care, because reasonable efforts toward reunification would have been futile).  The county's failure to make reasonable efforts here requires reversal.

Because the county proved no statutory basis by clear-and-convincing evidence, we do not reach the question of whether termination of R.G.'s parental rights was in the best interests of J.G.

Reversed.

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