In re the Children of: Marjon Marie Oja, Parent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-238, C7-03-239, C3-03-240

 

In re the Children of: 
Marjon Marie Oja, Parent.

 

Filed September 2, 2003

Affirmed

Wright, Judge

 

Ramsey County District Court

File Nos. J398553479, J901554521, J601551950

 

Robert J. Lawton, 1100 West Seventh Street, St. Paul, MN  55102 (for appellant mother)

 

Susan Gaertner, Ramsey County Attorney, Gwen A. Werner, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent RCCHSD)

 

Paul Bergstrom, 510 Dayton Street, St. Paul, MN  55102 (for respondent guardian ad litem)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this consolidated appeal, appellant-mother challenges the district court's decision to transfer legal and physical custody of her three children, M.G.O., R.M.O., and T.T.O.  Appellant argues that the district court applied an incorrect standard for the transfer of custody and that the district court's findings are unsupported by the record.  We affirm.  

FACTS

 

Appellant Marjon Oja is the biological mother of M.G.O., born January 18, 1999; T.T.O., born February 19, 1996; and R.M.O., born June 14, 1991.  Appellant has two other children, but their custody status is not at issue in this appeal.

St. Louis County Social Services removed R.M.O. from appellant's home in March 1992.  In January 1993, R.M.O. was adjudicated a Child in Need of Protection or Services (CHIPS) and placed with co-petitioner Catherine Brousseau, who served as R.M.O.'s foster parent from 1992-1997.  In 1996, St. Louis County Social Services filed a petition to terminate appellant's parental rights, which it subsequently dismissed, resulting in R.M.O.'s reunification with appellant.  In June 1998, appellant began working with Jessica Flynn, a Ramsey County Community Human Services Department (RCCHSD) child-protection worker.

In December 2000, appellant was arrested for felony shoplifting and her children were placed in a RCCHSD emergency shelter.  Appellant voluntarily signed an out-of-home placement agreement for her children.  RCCHSD filed a CHIPS petition on behalf of the five minor siblings on March 22, 2001.  The district court adjudicated the children in need of protection and services on May 15, 2001, and granted temporary legal custody of the children to RCCHSD. 

Flynn and appellant signed an agreement stating that M.G.O. would be returned to appellant if she reenrolled in the Genesis II parenting program after her incarceration.  Upon appellant's release from incarceration, she returned to the Genesis II parenting program.  Flynn, however, declined to return the children to appellant's care because Flynn believed that appellant was providing her inconsistent and false information and that the children were doing well in foster care.  Meanwhile, RCCHSD provided appellant with a case plan.  She completed part of the case plan, including attending therapy, remaining law-abiding, avoiding contact with friends who engaged in criminal conduct, exposing herself to a new community, attending a self-esteem program, and cooperating with two psychological examinations and a parenting assessment.  Appellant, however, did not complete the Genesis II parenting program despite attending it for approximately seven months. 

Three independent evaluations were performed on appellant between July 2001 and August 2002.  Dr. Mary Kenning performed a psychological and parenting assessment and concluded that the three children should not be returned to appellant's care.  Dr. Stephen Antonello conducted a psychological evaluation in July 2001 and recommended that appellant work with child protection to meet any necessary requirements to improve her parenting capacity.  Psychologist Pamela Henderson conducted a parenting assessment and recommended that the children be returned home gradually and that RCCHSD continue to monitor appellant over the next two years.  Joan Larson, appellant's therapist since 1996, also recommended gradual reintegration of the children into appellant's care.  Flynn, however, expressed concern that appellant could not meet her children's cognitive and emotional needs.

In August 2001, RCCHSD filed petitions to terminate appellant's rights to M.G.O., R.M.O., and T.T.O., and a trial commenced on June 5, 2002.  At trial, RCCHSD withdrew the termination-of-parental-rights petitions and instead filed petitions to transfer legal custody of the children.  Specifically, RCCHSD and co-petitioners Ray and Annette Shull petitioned to transfer legal custody of M.G.O. to the Shulls, the child's paternal grandparents.  RCCHSD and co-petitioner Catherine Brousseau petitioned to transfer legal custody of R.M.O. to Brousseau.  RCCHSD and co-petitioner Todd Kallstrom petitioned to transfer legal custody of T.T.O. to Kallstrom, the child's biological father.

After a nine-day trial occurring between June 5 and October 29, 2002, the district court granted the petitions and transferred the custody of the children in three separate orders filed on January 7, 2003.  These consolidated appeals followed. 

D E C I S I O N  

I.

 

Appellant alleges that the district court erred in transferring legal custody pursuant to Minn. Stat. § 260C.201 (2002) without addressing the 13 best-interests factors outlined in Minn. Stat. § 518.17 (2002).  Section 260C.201, subdivision 11(d), outlines the procedure for the transfer of legal custody following a CHIPS adjudication.  The transfer-of-legal-custody procedure requires the district court to conduct a hearing to determine a child's permanent status no later than 12 months after the child is placed out of the parent's home.  Minn. Stat. § 260C.201, subd. 11(a).  When addressing the child's permanent status, the responsible social services agency must petition the district court to order permanent placement if it does not recommend reunification.  Id., subd. 11(b).  If the social services agency decides not to return the child to the parent's home, the district court must order one of the following dispositions: (1) reunification; (2) transfer of legal custody to a relative; (3) long-term foster care; or (4) termination of parental rights.  Id., subd. 11(d).

Appellant correctly observes that section 260C.201 once provided that "in transferring permanent legal and physical custody to a relative, the juvenile court shall follow the standards and procedures applicable under this chapter, chapter 260, or chapter 518."  Minn. Stat. § 260C.21, subd. 11(e) (2000) (emphasis added).  The legislature, however, removed the language referring to chapter 518 in 2002.  2002 Minn. Laws ch. 304, § 7.  Section 260C.201 now instructs the district court to "follow the standards applicable under this chapter and chapter 260."  We, therefore, conclude that Minn. Stat. § 260C.201 does not require consideration of the Minn. Stat.    § 518.17 best-interests factors.  Indeed, we note that, because the previous version of the statute used the disjunctive "or", even that version of the statute never required the district court to make detailed findings regarding the factors listed in Minn. Stat. § 518.17.  Cf. Welscher v. Myhre, 231 Minn. 33, 38, 42 N.W.2d 311, 314 (1950) (interpreting "or" to be disjunctive).  The district court's transfer of legal custody of the children was not defective because it did not address the best-interests factors listed in Minn. Stat. § 518.17. 

II.

 

Appellant next contends that the record does not adequately support the permanent placement of her children.  When reviewing a permanent-placement order, we determine whether the district court's "findings address the statutory criteria and are supported by ‘substantial evidence,' or whether they are clearly erroneous."  In re Welfare of      A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (quoting In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)).  When doing so, we are mindful that "the county must prove the allegations of the petition for permanent placement by clear and convincing evidence" and that we view the evidence and its reasonable inferences in the light most favorable to the prevailing party.  A.R.G.-B., 551 N.W.2d at 261. 

The statutory criteria the district court must consider when addressing whether to transfer legal custody are listed as follows:

An order under this subdivision must include the following detailed findings:

 

(1)       how the child's best interests are served by the order;

(2)       the nature and extent of the responsible social service agency's reasonable efforts . . . to reunify the child with the parent or parents;

(3)       the parent's or parents' efforts and ability to use services to correct the conditions which led to the out-of-home placement; and

(4)       whether the conditions which led to the out-of-home placement have been corrected so that the child can return home.

 

Minn. Stat. § 260C.201, subd. 11(h)

 

A.         Best Interests of the Child

In selecting a placement for a child, "the [district] court must be governed by the best interests of the child."  Minn. Stat. § 260C.201, subd. 11(e).  Appellant argues that there is insufficient evidence to support the district court's finding that the best interests of each child are served by the transfer of custody to the co-petitioners.  Here, the district court found that (1) all of the children are currently in homes that provide them with the stability and consistency they need and lacked while in appellant's custody; (2) returning the children to appellant's custody would endanger the children's physical and emotional health and impair their emotional development; and (3) the harm likely to be caused by a transfer of custody is outweighed by the advantages of a transfer.  These general findings are consistent with the expert testimony offered by Dr. Keening; the guardian ad litem (GAL); and the children's therapists, Christine Kleich and Marcie Johnson, all of whom opined that transferring custody was in the children's best interests because reuniting the children with appellant presents a significant risk of physical or psychological damage to the children. 

The record also supports the district court's findings that specifically address each child.  The district court found that transferring custody of M.G.O. to the Shulls is in M.G.O.'s best interests because "it preserves the bond within the family unit," and, having lived with her grandparents for the past year and a half, M.G.O. was "doing very well in their care."  The record supports this finding.  Kleich, M.G.O.'s therapist, testified that M.G.O. needs consistency, predictability, structure, and a caregiver who is attuned to her needs.  Kleich added that, unlike appellant, the Shulls were able to meet M.G.O.'s needs.  Kleich also testified that, if M.G.O. were returned to appellant, the child would not be able to develop trusting relationships or regulate her emotions.  The district court also found that, since M.G.O has been in the Shulls's care, M.G.O. has flourished with routine and structure.

            The district court determined that transferring custody of R.M.O. to Brousseau is in R.M.O.'s best interests because Brousseau "is a significant person in the life of [R.M.O].  She has been her foster parent for a significant period of time."  This finding is supported by clear and convincing evidence, including the testimony of Johnson, R.M.O.'s therapist, who diagnosed R.M.O. with an adjustment disorder and characteristics of reactive and ambivalent attachment disorders.  Johnson testified that R.M.O.'s ambivalent attachment to appellant raises a long-term risk of R.M.O. developing unhealthy relationships, engaging in substance abuse, and being victimized by others.  She also testified that, while in Brousseau's custody, R.M.O.'s school attendance has dramatically improved, she has progressed well in school, and, significantly, she has begun developing a personal identity. 

            The district court found that transferring custody of T.T.O. to Kallstrom was in T.T.O's best interests because Kallstrom has made "successful efforts to integrate [T.T.O.] with his paternal family" and T.T.O. is doing well in Kallstrom's care.  The record supports the district court's findings.  Because appellant failed to give correct information about T.T.O.'s father to the RCCHSD, Kallstrom did not become involved in the case until February 2002.  Since that time, Kallstrom has cooperated with T.T.O.'s social worker and worked with T.T.O.'s therapist.  T.T.O. has lived with Kallstrom since August 2002.  Kleich testified that T.T.O.'s general anxiety is reduced when he is with his father, he has significantly decreased his day and nighttime wetting, he is no longer afraid to sleep alone or in the dark, and he has made remarkable progress in school. 

Appellant also argues that the district court failed to make detailed findings regarding the suitability of the prospective custodians, citing Minn. Stat. § 260C.201, subd. (d)(1)(i), which provides, "an order for transfer of permanent legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodians."  After a careful review of the record, we conclude that the district court's findings adequately considered the prospective custodians' suitability in relation to the children's best interests as required by Minn. Stat. §§ 260C.201, subd. 2(3), .212, subd. 2(2)(b) (2002). 

            On this record, we conclude that (1) the district court's findings address why transferring custody of the children is in their best interests and (2) the record supports the district court's findings with clear and convincing evidence. 

B.         RCCHSD's Efforts to Reunite Parent and Child

The next factor in Minn. Stat. § 260C.201, subd. 11(h), requires the district court to examine RCCHSD's efforts to reunite appellant and her children.  When a child alleged to be in need of protection or services is under the court's jurisdiction, the responsible social services agency must make reasonable efforts to reunite the child with the child's family.  Minn. Stat. § 260.012(a) (2002).  In doing so, the social services agency must make "reasonable efforts" to "use the appropriate and available services to meet the needs of the child and the child's family in order to . . . eliminate the need for removal and reunite the family."  Minn. Stat. §§ 260C.201, subd. 2(4) (reasonable efforts), 260.012(b) (2002) (appropriate and available services). 

Here, the district court determined that RCCHSD made the requisite reasonable efforts to provide appropriate services to appellant.  The record supports this determination.  Specifically, to facilitate the reunification of appellant and her children, RCCHSD developed a case plan for appellant.  To help appellant satisfy the requirements of her case plan, RCCHSD facilitated appellant's participation in numerous services, including dialectical behavior therapy, the Genesis II parenting program, the Wilder in-home parenting program, the YWCA Transitional Housing Program, Gladstone Family Learning Center, and Project Reconnect. 

Because there is substantial evidence in the record supporting the district court's findings that RCCHSD made reasonable efforts to reunite appellant with her children, we conclude that those findings are not clearly erroneous. 

C.        Appellant's Efforts to Correct the Conditions Resulting in the Out-of-Home Placement

Appellant was required to correct the conditions that led to the out-of-home placement in order to be reunited with her children.  The district court found that, "[d]espite not having the daily demands of caring for her children, [appellant] has not complied with her case plan or resolved all of the issues that need to be resolved in order to have the children returned to her safely."  The record establishes that appellant complied with some parts of her case plan, including remaining law-abiding, severing contact with certain people who engage in criminal activity, and exposing herself to a new community.  But where a parent's degree of progress does not address all of the aspects of a case plan that are critical to the parent's ability to care for his or her children, a showing of only some progress is insufficient to establish that the district court's finding is clearly erroneous.  See In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn. App. 1985) (noting that an alleged recent improvement was, in light of a "negative track record," not enough to show the district court clearly erred in finding the mother's poor parenting would continue indefinitely), review denied (Minn. Nov. 25, 1985).  As a reviewing court, we look for significant progress in fulfilling the requirements of an assigned case plan.  See In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999) (noting that mother had made significant progress in fulfilling her case plan and "her failures to comply could not be blamed entirely on her"). 

Here, the record supports the district court's finding that appellant did not make significant progress in completing her assigned case plan.  Appellant testified that she quit the Genesis II parenting program before completion and that she failed to maintain a required diary documenting her visits with her children.  The record also shows that appellant consistently expressed suicidal ideation to many of her service providers and her children; that, based on appellant's statements to them, her children were concerned that their mother might hurt herself if they were not reunited with her; that she has not resolved many of her medical problems affecting her ability to create a healthier lifestyle; and that she failed to complete or consistently attend therapy for her personality disorders.  The district court found that, while appellant has made progress in addressing her depression, appellant has not made sufficient progress addressing issues regarding her impulsivity, her inability to protect herself from abusive family members, her poor decision-making, and her lack of assertiveness.  In her testimony, appellant's therapist expressed concern that appellant was stockpiling medication with which to hurt herself.  And Flynn, the child-protection worker assigned to the case, testified that appellant failed to maintain structure and routine with her children and identified economic issues as an ongoing concern, noting that, despite assistance from Neighbor to Neighbor, Project Reconnect, and the Wilder parenting program, appellant failed to address these issues by creating a budget. 

On this record, the district court's findings that appellant has not complied with the case plan and not fully used the services provided by RCCHSD to correct the conditions that led to the out-of-home placement are well supported. 

D.        Whether the Conditions Have Been Corrected

The district court determined that "[i]t is doubtful that [appellant] will reach a point in the reasonably foreseeable future where she can grow to the point that she can properly care for these four[[1]] needy children" and found that it is unlikely appellant can continue to improve while caring for her children.  This determination is consistent with the record.  In addition to failing to complete her case plan, several evaluators testified that appellant's psychological condition continues to impede her parenting ability.  Dr. Kenning diagnosed appellant with borderline personality disorder and severe depression and testified that appellant's "own needs make it difficult for her to pay attention to what's going on with her kids in a way that's consistent and that allows her to do the things that they need from a stable parent."  Dr. Kenning opined that appellant would not be able to care for her children adequately in the foreseeable future.  Dr. Antonello observed "significant evidence of personality disorders" and testified that appellant's "unresolved physical, emotional and sexual abuse [issues] are probably continuing to have a negative impact on her parenting style."  Similarly, the GAL submitted a report concluding that appellant's "behaviors have not and will not provide the structure, security, safety, stability, and parenting the children require."

            After a careful review of the record, we conclude that the district court's findings are supported by clear and convincing evidence and address the statutory criteria outlined in Minn. Stat. 260C.201, subd. 11(h). 

            Affirmed.

 

[1]  The district court did not transfer legal custody of the fourth child referenced in this finding.  Accordingly, the welfare of that child is not the subject of this appeal.