In the Matter of the Welfare of the Child of F.W.: R.W., d.o.b. 02/10/1995.

In the Matter of the Welfare of the Child of F.W.: R.W., d.o.b. 02/10/1995. C4-00-1074, Court of Appeals Unpublished, December 26, 2000.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-1074

 

 

In the Matter of the Welfare of the Child of F.W.:

R.W., d.o.b. 02/10/1995.

 

 

Filed December 26, 2000

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. J099053821

 

 

William E. McGee, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant father)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, J. Michael Richardson, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children and Family Services)

 

William E. McGee, Chief Fourth District Public Defender, Charles S. Weber, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent mother)

 

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

 

 

            Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Father appeals the district court's order terminating his parental rights to his daughter, R.W.  We affirm.

FACTS

In May 1986, father pleaded guilty to second-degree criminal sexual conduct for touching the vagina of the eight-year-old daughter of the woman with whom he was living.  His sentence was stayed and he was placed on probation, but he was not required to attend any sexual offender counseling in connection with that probation.  Although he pleaded guilty, father contends that he did not commit the crime. 

In June 1997, respondent Hennepin County Department of Children and Family Services filed a CHIPS petition concerning T.J, another daughter of father and mother.  Neither father nor mother appeared at an October 1997 CHIPS hearing, and T.J. was adjudicated a child in need of protection and services by default.  A month later, the department petitioned to terminate mother and father's parental rights to T.J.; once again, both father and mother defaulted, and their parental rights to T.J. were terminated in July 1998.

During a March 1999 investigation, police officers found unsanitary conditions at father's home, including insect infestation and rotting food in the open.  There appeared no private place for R.W. to sleep in the one-bedroom apartment, and the officers found a large number of pornographic videotapes in the living room where R.W. could be exposed to them.  The officers took R.W. to a shelter, and the department filed a CHIPS petition. 

After a trial, the district court found R.W. to be a child in need of protection and services.  The court found that father's parental rights to T.J. had previously been terminated and that father was an "untreated sex offender."  The court ordered the following case plan for father:

The court hereby adopts and orders the case plan to be fully complied with and successfully completed by the Respondent father:

 

Father will successfully complete a sex offender treatment program.

 

Father will successfully complete the domestic abuse program at African American Family Services.

 

Father will complete a Rule 25 chemical health assessment and will follow through with recommendations for services.

 

Father will supply urinalysis samples on a regular basis to verify his sobriety.  Adulterated or missed urinalysis will be deemed presumptively positive.

 

Father will be given regular supervised visitation with [R.W.].

 

In connection with this case plan, father was referred to Alpha Human Services' Psychoeducational Sexual Behavior Program.  This program is sometimes called the "deniers' group," because it is aimed at sex offenders who do not admit they committed the crime.  On father's first attempt, he was expelled from the program; on his second attempt, he completed the program, though not until almost three months after the scheduled end of the program.  Alpha Human Services does not consider the Psychoeducational Sexual Behavior Program a "therapy program," at least in part because the program does not require the offenders to acknowledge their sexual misconduct.  According to evidence offered by an Alpha Human Services psychologist, a treatment program requires the offender to admit the sexual misconduct.

Six weeks after the district court's CHIPS order, the department filed a petition to terminate father's (and mother's) parental rights to R.W.  The petition sought to terminate father's rights on the grounds he was palpably unfit to be a party to the parent and child relationship and that reasonable efforts had failed to correct the conditions leading to the placement. 

After a trial, the district court terminated father's parental rights.  Father moved for a new trial; while it was pending, he filed a notice of appeal in this court.  We ordered briefing on prematurity, but while those briefs were pending the district court filed its final orders.  We then accepted jurisdiction.

D E C I S I O N

The district court terminated father's parental rights on two grounds: father was "palpably unfit to be a party to the parent and child relationship," Minn. Stat. § 260C.301, subd. 1(b)(4) (Supp. 1999), and "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," Minn. Stat. § 260C.301, subd. 1(b)(5) (Supp. 1999).  The party petitioning for termination must prove one or more of the statutory grounds 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).  While only one ground needs to be proven to support termination, the "paramount consideration" in every termination case is the child's best interests.  Minn. Stat. § 260C.301, subds. 1(b), 7 (Supp. 1999).  Although we give some deference to the trial court's findings, we exercise great caution in termination proceedings and closely examine the evidence to determine whether it is clear and convincing.  In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn. App. 1987); see In re Welfare of S.Z., 547 N.W.2d 886 (Minn. 1996) (terms "substantial evidence" and "clear and convincing evidence" used interchangeably). 

Because father's parental rights to T.J. were involuntarily terminated, he is presumed to be palpably unfit to parent R.W.  Minn. Stat. § 260C.301, subd. 1(b)(4).  The issue is whether father has rebutted the presumption.  (The parties and the district court agree that the presumption is rebuttable.)  Father contends that he has rebutted the presumption by fulfilling his case plan, and contends that due process prevents the department from contending that he has failed to do so because the Psychoeducational Sexual Behavior Program is not a sex offender treatment program.

But even if we treat the Psychoeducational Sexual Behavior Program as a sex offender treatment program father did not successfully complete it.  On his first try to complete the program, father was expelled.  On his second try, Alpha Human Services sent the department a letter detailing father's mid-term program status.  This letter warned that father would again be expelled if he did not improve his performance in the course.  The letter explained, in part:

Participation in class discussion is expected of all clients.  They were told of this expectation from the beginning of the program.  [Father] has never participated in class discussions.  We have also had to awaken [father] several times during class.  [Father] needs to pay attention, not to sleep.

 

In order to successfully complete this course, [father] cannot miss any additional classes, must rewrite and pass his failed post-tests, must write all tests previously not taken, pass all future tests, and increase his level of participation in the second half of the course.

 

(Emphasis added.)  

Father did complete the course, though it took him almost three months past the course's scheduled conclusion.  In its report to the department about father's performance in the course, Alpha Human Services noted that father still failed to participate in class discussions as required:

Participation in class discussions was expected of all clients.  They were reminded of this expectation throughout the class, especially following the mid-term report.  [Father] was more attentive during the second half of the course, but remained a non-participant in class discussions.

 

(Emphasis added.)  Although Alpha Human Services' final report on father's participation did not state whether father had successfully completed the course, according to the criteria it specified in the mid-term report, father did not do so, because he failed to participate in class discussions as required. 

Because father did not successfully complete the Psychoeducational Sexual Behavior Program, he did not fully comply with his case plan, and in fact failed to comply with arguably its most important requirement. 

In addition, we note that father failed to comply with other requirements of the case plan.  The case plan required that "Father will complete a Rule 25 chemical health assessment and will follow through with recommendations for services."  The chemical health assessment recommended that father attend an "At-Risk" program, and father did so.  But the written report on father's participation in the program noted that except for being there, father did not participate in the program in any way.  The case plan also requires father to "supply urinalysis samples on a regular basis to verify his sobriety."  Father's urinalysis, however, did not "verify his sobriety"; instead, he tested positive for cocaine on one occasion and alcohol on another. 

The district court therefore did not err in finding that father did not rebut the presumption that he was palpably unfit to be a party to the parent-child relationship.  Because the department need only prove one statutory ground to justify termination, we need not consider whether reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement.

Father does not challenge the trial court's finding that terminating father's parental rights is in the best interests of the child.  A review of the record reveals that this finding is not clearly erroneous.

Father further argues that the district court erred by adopting the department's proposed findings of fact and conclusions of law verbatim.  But before the department, acting at the court's request, submitted its proposed findings of fact and conclusions of law, the trial court had already prepared its own "preliminary" findings.  The court's preliminary findings, five single-spaced pages, amply demonstrate that the trial court conducted a careful and independent review of all the evidence.  The district court did not err by adopting as its final order the findings of fact and conclusions of law prepared by the department.

Affirmed.