In the Matter of the Welfare of the Children of: A.O., Mother, J.A.S., Father.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-93

 

 

In the Matter of the Welfare of the Children of:

A.O., Mother, J.A.S., Father.

 

 

Filed September 12, 2000

Affirmed

Peterson, Judge

 

 

Hennepin County District Court

File Nos. J7-96-058810
J1-98-052196

 

 

William E. McGee, Fourth District Public Defender, Renee Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant mother)
 
Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Senior Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Department of Children and Family Services)

 

Gerald M.B. Chester, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for guardian ad litem)

 

            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

           Appellant-mother A.O. challenges the trial court's termination of her parental rights to her children J.S. and K.S.  We affirm.

FACTS

J.S. was born to appellant and J.A.S. on October 2, 1997.  D.C., T.C., and A.C., all children of appellant, but not of J.A.S., lived with appellant and J.A.S. on February 1, 1998, when appellant left them in the sole care of J.A.S. for 20-30 minutes.  A.C. died at home while appellant was gone.[1]  D.C., T.C., and J.S. were removed from the home on February 2, 1998, and the Hennepin County Department of Children and Family Services (DCFS) filed a petition alleging that J.S. was a child in need of protection or services.[2]  Custody of all three children was transferred to the DCFS, and they have remained in out-of-home placement since February 1998. 

            On July 13, 1998, the DCFS filed a petition seeking the termination of appellant's parental rights to J.S. on the grounds that (1) under Minn. Stat. § 260.221, subd. 1(b) (5) (1998), following a determination that J.S. was in need of protection or services, reasonable efforts had failed to correct the conditions that led to the children's out-of-home placement, (2) a child had experienced egregious harm while in the parent's care within the meaning of Minn. Stat. § 260.221, subd. 1 (b)(6) (1998), and that termination was in the best interests of J.S.  After the birth of K.S. on September 20, 1998, the DCFS amended the termination petition to include K.S.  K.S. has been out of appellant's care since September 24, 1998.

Following a trial,[3] the court concluded that clear and convincing evidence supported both grounds for termination and ordered termination of appellant's parental rights.  The trial court also found that the DCFS had made reasonable efforts to rehabilitate appellant and reunite the family and that termination of appellant's parental rights was in the best interests of the children. 

D E C I S I O N

Parental rights are terminated only for grave and weighty reasons.  The standard of review is, therefore, well defined.  The appellate court must determine whether the trial court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.  The child's best interests, however, remain the paramount consideration in every termination case. 

 

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citations omitted).  In an action to terminate parental rights, the county must prove by clear and convincing evidence that at least one statutory ground exists for termination.  Minn. Stat. § 260.221, subd. 1(b) (1998)[4]; In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988).  Also, when terminating parental rights on any ground, the trial court must find that the county has made reasonable efforts to provide rehabilitation or reunification services.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  The trial court shall make specific findings "regarding the nature and extent of efforts made by the social service agency to rehabilitate the parent and reunite the family," or that such efforts are not required.  Minn. Stat. § 260.221, subd. 5 (1998).

1.  Reasonable Efforts

Appellant began receiving services through the DCFS in June 1996 when she was ordered by the court to complete a case plan.  Services provided to her included the Elim Transitional Housing Program and the Family Network's REEL Program, which offered parenting classes and pre-school for the children.  During the years from 1996 through trial, it was recommended that appellant receive mental health treatment.  She was first diagnosed as having bipolar disorder, but she did not follow through with therapy.  She was later diagnosed with post-traumatic stress disorder, and she again resisted therapy. Following the removal of the children from appellant's home after A.C.'s death, appellant was allowed supervised visitation at the Reuben Lindh center.  Appellant also received in-home assessment services through Freeport West. 

           Appellant acknowledges the services she has received since 1996, but she argues that because the DCFS provided no new programming during the year before trial, the trial court erred when it found that the county made reasonable efforts to reunite her with her children. 

            On September 4, 1998, which was during the year before trial, the court ordered appellant to participate in the Genesis II program.  Appellant describes this program as the most intensive parenting program that she attended, but she argues that it was not provided by the DCFS because the public defender's office, not the county, referred her to the program.  She contends that during the year before the termination trial, the only efforts at reunification came from the Genesis II staff.

            The trial court's findings list the various programs in which appellant has been involved, describe her performance in each program, and conclude that the DCFS provided many and varied services almost continuously since June 1996 that were "more than reasonable to meet the needs of the mother." 

            The trial court's finding that the services provided to appellant were more than reasonable is not clearly erroneous.  The record supports the trial court's findings regarding appellant's participation in programs.  The mere fact that the public defender's office, rather than the county, referred appellant to the Genesis II program does not demonstrate that the trial court erred when it found that the county made reasonable efforts to reunite appellant with her children.  The termination statute requires the county to exercise due diligence to provide services to reunite the family.  Minn. Stat. § 260.012(b) (1998).  But this requirement is intended to ensure that parental rights are not terminated when services could eliminate the need for termination; it is not intended to prevent termination simply because the county did not direct a parent to one of the services the parent received. 

            Furthermore, the county is required to make reasonable efforts to provide rehabilitation or reunification services.  It was not unreasonable for the county to not take further steps to provide services to appellant when she had already been referred to, and was participating in, the Genesis II program.

2.  Substantial Compliance with Case Plan

           Appellant argues that because she was in substantial compliance with her case plan at the time of trial, the state failed to prove by clear and convincing evidence that she had not corrected the conditions that led to the out-of-home placement.  Appellant also argues that even where the state has satisfied the statutory conditions for terminating parental rights, the state must also show that the conditions that led to the termination petition continue to exist at the time of the hearing and will continue for a prolonged, indefinite period of time.  Therefore, appellant contends, the trial court erred by terminating her parental rights.

            The trial court may terminate parental rights to a child if it finds

that following upon a determination of * * * a child's need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination.

 

Minn. Stat. § 260.221, subd. 1(b)(5) (1998).

The petitioning party must prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period * * * .

 

M.D.O., 462 N.W.2d at 377.

            The trial court found:

Of all the providers working with [appellant], Genesis II was the most intensive and the most optimistic.  In the end, however, even Genesis II was not able to recommend the return of these children to their mother without substantial intervening services.  Ms. Susan Conlin from the program testified that the relationship with [appellant] and her child [J.S.] was more complicated than her relationship with her child [K.S.] and would not recommend returning the children to [appellant].  Ms. Conlin recommended that the family be placed in full family foster care with continued parenting guidance and individual therapy because of [appellant's] ongoing difficulties.  Ms. Conlin did not specify how long these services would need to be in place before [appellant] would be able to care for her children on her own if ever.

 

            The court further found:

Ms. Conlin conceded that these recommendations were more restrictive than those she made at the time [K.S.] was removed from the mother's care one year ago.  She acknowledged the increased restrictions she recommended were a result of the Genesis II Program seeing more stress in the mother recently.

 

            The court also found that appellant was living with a friend, rather than the structured living environment recommended by Genesis II, and had consistently failed to follow through with the recommendation of her mental health providers that she continue therapy.

            The court concluded:

In short, after receiving a tremendous amount of parenting intervention, it is apparent that [appellant] cannot yet safely and completely meet the needs [of either child].

 

            These findings indicate that at the time of trial, appellant had not acquired the skills necessary to independently care for her children, and that it could not be determined whether she would ever acquire these skills.  Furthermore, although appellant had made some progress in the past, at the time of trial, conditions had grown worse.

            The record supports the trial court's conclusion that there was clear and convincing evidence that appellant's parental rights should be terminated because reasonable efforts, under the direction of the court, had failed to correct the conditions leading to the children's need for protection or services.

3.  Egregious Harm

           Appellant contends that the trial court erred by terminating her parental rights where the state did not prove that A.C. suffered egregious harm while in appellant's care. Because only one statutory ground for termination is required, we need not address this additional ground for termination, and we decline to do so.

4.  Best Interests

           Appellant argues that in the total context of this case, it is clear that the best interests of the children will be served by reuniting them with her, and the trial court erred by concluding otherwise.  We disagree.  Considering the total context of this case, the trial court's determination that it is in the children's best interests to terminate parental rights so that the children can be freed for adoption is supported by its findings that (1) J.S. had lived with appellant for only four months of his two years of life and has only a tentative bond with his mother, (2) K.S. has been out of her mother's care all of her life, and (3) appellant cannot care for the children now and will not be able to care for them in the future.

            Affirmed.

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

[1]  J.A.S. was charged with the murder of A.C. and found guilty of second-degree felony murder in violation of Minn. Stat. § 609.19(2) (1996).  Appellant pleaded guilty to gross misdemeanor endangerment of a child in violation of Minn. Stat. § 609.278, subd. 1(b)(1) (1996), in connection with A.C.'s death.

[2] During June 1996, a petition was filed alleging that D.C., T.C., and A.C. were children in need of protection or services.  On April 8, 1997, the parties stipulated to an adjudication that all three children were children in need of protection or services.  The children were allowed to stay with appellant under protective supervision and appellant was ordered to comply with a case plan.

[3] A joint trial was held to consider the termination petition and the DCFS's motion to transfer legal custody of D.C. and T.C. to T.C.'s father.  The parties stipulated to the transfer of custody of the two older children.  The transfer of legal custody is not an issue in this appeal.

[4]  Effective August 1, 1999, several sections in chapter 260 were repealed and recodified in chapter 260C.  The act that recodified these sections states:

The legislature intends this act to be a clarification and reorganization of laws relating to juvenile delinquency and child protection in Minnesota Statutes, chapters 257 and 260. The changes that have been made are not intended to alter those laws and shall not be construed by a court or other authority to alter them.

1999 Minn. Laws ch. 139, art. 4, § 1.  Because the trial in this matter began before the effective date of the statutory changes and the statutory changes are not to be construed to alter the repealed statutes, we will apply the statutes in effect when the trial began.