In the Matter of the Child of: Tammi Clear and Jason Wolfe, Parents.

This opinion will be unpublished and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

A03-764

 

 

In the Matter of the Child of:
Tammi Clear and Jason Wolfe, Parents.

 

 

Filed December 9, 2003

Affirmed

Minge, Judge

 

 

Ottertail County District Court

File No. J4-01-50669

 

Allen Haugrud, Svingen, Hagstrom, Karkela, Cline & Dirks, P.L.L.P., 125 South Mill Street, P.O. Box 697, Fergus Falls, MN 56538-0697 (for appellant)

 

David J. Hauser, Ottertail County Attorney, Kurt A. Mortenson, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent Ottertail County)

 

David A. Phillipe, 411 N. Broadway, P.O. Box 1031, Fergus Falls, MN 56538-1031 (for respondent Jason Wolfe)

 

Mark Stolpman, Stolpman Law Office, 125 West Lincoln, P.O. Box 131, Fergus Falls, MN 56538-0131 (for guardian ad litem)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant mother challenges the termination of her parental rights on the ground that the evidence is not adequate to support the district court's decision.  Because we conclude the district court's findings are not clearly erroneous, we affirm.

FACTS

 

Appellant is the mother of three children: P.R.F., B.M-C., and V.M-C.  P.R.F is the subject of this appeal.  The Otter Tail County Department of Human Services (DHS) has provided services to appellant and her family for several years.  In September 1997, DHS conducted an assessment, determined maltreatment, and recommended protective services for the children.  In June 1999, DHS recommended services for household cleanliness, parenting, and financial assistance.  In December 2000, DHS was involved with the family when appellant was arrested for felony-welfare fraud and unable to care for the children.  In April 2002, DHS again offered services to the family but appellant refused. 

            After voluntarily placing B.M-C. and V.M-C. with relatives in September and October 2001, appellant placed P.R.F. in foster care pursuant to a voluntary out-of-home placement agreement in November 2001.  In December 2001, custody of P.R.F. was transferred to DHS when appellant's whereabouts were unknown.  Appellant later contacted DHS to inform them that she had moved to the Minneapolis area.  P.R.F. was adjudicated a child in need of protection or services on January 11, 2002.

P.R.F. is a child with special needs.  He was diagnosed with three psychological disorders, impaired cognitive development, and as being mildly mentally handicapped.  A psychologist described P.R.F.'s past as a history of trauma and change, and recommended that the most effective treatment was placing him in a permanent, structured, and nurturing home.

The court adopted, and appellant agreed to, an out-of-home placement plan for P.R.F.  It required her to: (1) complete a psychological parental-capacity evaluation and follow all recommendations; (2) maintain employment; (3) acquire appropriate housing for P.R.F. and herself; and (4) maintain contact with P.R.F. twice a month.  DHS utilized short-term written agreements with appellant to assist her in understanding these requirements.  Appellant failed to successfully complete the requirements in the following particulars:

1. Parenting Evaluation:  Appellant completed the parental-capacity evaluation and was found to have personality and learning disorders, poor parenting skills, and a poor understanding of her children's special needs.  The psychologist recommended voluntary counseling, parenting-skills instruction, and a parenting mentor.  Appellant failed to contact service providers to participate in the recommended services and programs.  Although she registered for parenting classes, at the time of the trial she had only attended two of the classes. 

2. Maintaining Employment:  From the time the court adopted the out-of-home placement plan until the hearing, appellant was terminated from employment twice.  DHS provided her with the services of a job coach, but he quit working with her because she failed to remain in contact with him or follow through with second job interviews. 

3.  Housing:  Throughout the time P.R.F. was in foster care, appellant lived in temporary shelters in Minneapolis, despite repeated encouragement from DHS to return to the Fergus Falls area to be closer to her children.  4.  Contact with P.R.F.:  Appellant failed to maintain regular visitation with P.R.F. despite DHS arranging transportation.  In one instance, she returned to the Fergus Falls area but did not visit with him.  She attended visitation with P.R.F. on August 6 and December 11, 2002, but a DHS report indicates that appellant made no effort to see P.R.F. from August 6 to September 23.  She failed to attend visitations on October 10, 26, and 27, 2002, and failed to visit him in November 2002 and January 2003. 

Appellant's rights to her children were limited by several proceedings.  As a result of permanency hearings on July 31 and August 6, 2002, permanent physical and legal custody of V.M-C. was involuntarily transferred to her father, Elliot J. Melby.  In a separate proceeding on December 3, 2002, permanent legal and physical custody of B.M-C. was involuntarily transferred to her father, Jeff McSorley.  On September 20, 2002, P.R.F. was placed with his father, Jason Wolfe.  In December 2002, Wolfe decided that he was no longer willing to accept custody because he could not meet the special needs of the child.  Following Wolfe's decision, P.R.F. was placed in foster care with a paternal aunt and her family who stated their intention to adopt P.R.F. and keep him in contact with his siblings.  On December 11, 2002, DHS initiated this proceeding to terminate appellant's parental rights to P.R.F.

At the time of trial, appellant was employed and had made arrangements to rent an apartment.  She argued that her rights should not be terminated and that a transfer of physical and legal custody to Jeff McSorley was a less-restrictive alternative.  The court found that appellant was palpably unfit to be a party to the parent and child relationship, had failed to rebut the presumption of palpable unfitness resulting from the involuntary transfer of her two other children, and had failed to affirmatively and actively demonstrate her ability to successfully parent P.R.F.  The court further found that transfer of custody to Jeff McSorley was not in the child's best interests. 

D E C I S I O N

 

"Parental rights are terminated only for grave and weighty reasons."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  When reviewing a district court's findings in a termination proceeding "appellate courts are 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).  A district court's fact findings will not be set aside unless review of the entire record leaves the court "with a definite and firm conviction that a mistake has been made."  In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996) (citation omitted). 

Courts may terminate all the rights of a parent to a child if it finds:

(4) that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct . . . that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the     . . . needs of the child . . . .

 

(5) 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)(4), (5) (2002).  Although the district court terminated appellant's parental rights on several grounds, it need find only one statutory ground to terminate parental rights.  In re Welfare of S.Z., 547 N.W.2d 886, 890 (Minn. 1996).  In making these decisions, the best interests of the child must be the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2002).     

I.

            When a parent's custodial rights to one or more other children have been involuntarily transferred to a relative, it is presumed that the parent is palpably unfit to be a party to the current parent and child relationship.  Minn. Stat. § 260C.301, subd. 1(b)(4).  Because appellant's parental rights to her first two children were involuntarily transferred, she is presumed to be palpably unfit to parent P.R.F. and bears the burden of rebutting that presumption.  Id.  The district court found that appellant failed to meet this burden.

Appellant argues that the court's use of the presumption is unfair and should be rejected because it requires her to pursue her rights and appeals in one case to protect her parental rights in another, and because it incorporates into this case the circumstances of the other proceedings.  Appellant is correct in her interpretation.  But, the statute does not state that the decisions and events giving rise to the presumption have to be in the same proceeding as the one in which the presumption is applied.  Minn. Stat. § 260C.301, subd. 1(b)(4).  In this case, there was a separate two-day permanency trial regarding the welfare and best interests of B.M-C.  At the hearing, the court considered the separate family court proceeding involving custody of V.M-C.  Appellant was represented by counsel at both of these hearings and had ample opportunities to present evidence and cross-examine witnesses.  She was afforded all of the rights that a party is entitled to in a child-protection hearing.  Further, appellant did not appeal the orders involuntarily transferring her other two children.  See In re Welfare of J.R., Jr., 655 N.W.2d 1, 9 (Minn. 2003) (Anderson, J. concurring) (noting court correctly applied the presumption when appellant was represented by counsel at first termination proceedings and did not challenge the orders). 

While the previous transfers were in a separate court file, the district court took judicial notice of the findings of facts and conclusions of law from these cases and considered the facts giving rise to the involuntary transfer of the first two children.   If appellant believed there was insufficient evidence to support either of the first two determinations, she could have raised that as a defense to the termination of her rights.  No such challenges to those proceedings have been raised.  Further, there was time after appellant's parental rights to V.M-C. and B.M-C. were transferred before P.R.F.'s termination petition was filed.  During that time, appellant failed to correct any of the conditions giving rise to the limitation on her parental rights, providing additional support for terminating her parental rights to P.R.F.  Appellant's arguments as to the unfairness of the presumption are therefore not accepted.

This brings us to the presumption of unfitness in this case based on past determinations of unfitness.  This presumption is rebuttable if appellant establishes that the prior condition of unfitness no longer exists.  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).  To rebut the presumption, a parent must actively and affirmatively demonstrate his or her ability to successfully parent a child.  Id. at 251.  The court found that appellant failed to rebut the presumption.  The evidence supports this finding. 

Throughout the time that P.R.F. was placed out of appellant's home, DHS prepared plans for the family, which provided essential goals for appellant to satisfy in order to retain custody of her child.  DHS repeatedly encouraged appellant to move back to the Fergus Falls area to be closer to P.R.F., but she continued to reside in Minneapolis.  She failed to perform any of the conditions.  One condition was to find appropriate housing, yet she continued to live in temporary shelters.  Appellant agreed to attend parenting classes, but at the time of trial, she had attended only two classes.  See id. (noting sporadic attendance at parenting classes is insufficient to demonstrate that parent has succeeded in improving parenting skills).  Additionally, appellant was expected to visit with P.R.F. every two weeks.  Appellant rarely visited P.R.F. after August 6, 2002, despite DHS' continued efforts to provide her with transportation.  When appellant did visit the Fergus Falls area, she did not contact DHS to see her son. 

Appellant argues that additional resources were available which should have been offered to her.  Normally, when a child under the court's jurisdiction is in need of protection, the court shall ensure that reasonable efforts are made to eliminate the need for removal.  Minn. Stat. § 260.012(a) (2002).  But, where the district court determines that the parental rights to another child have been involuntarily terminated or custody involuntarily transferred, the social services agency is not required to develop a case plan or make reasonable efforts to reunite the parent and child.  Minn. Stat. § 260.012(a)(1)(ii).  The parents are required to seek out available community resources on their own to demonstrate their fitness.  D.L.R.D., 656 N.W.2d at 251.   Not only did appellant not actively seek out services, she failed to utilize the plan DHS provided for her. 

While appellant claims to have made improvements in her life immediately before the trial, the improvements are slight in relation to what she was required to do.  See In re Welfare of J.L.L., 396 N.W.2d 647, 651 (Minn. App. 1986)("Although we commend appellant for the efforts he has made in seeking assistance, we must conclude that the progress evidenced is minimal when considered in light of the requirements that must be met to resolve the substantial underlying problems.").  P.R.F.'s guardian ad litem said appellant's efforts were "too little too late for [P.R.F.]"  The court's findings are supported by substantial evidence and are not clearly erroneous.

            Because appellant has been found to be a palpably unfit parent, one of the grounds for terminating appellant's parental rights is met, and we do not address the alternative grounds found by the district court.  We have reviewed the record, however, and conclude that there is clear and convincing evidence that appellant failed to correct the conditions leading to P.R.F.'s out-of-home placement and that reunification of the child and appellant would not occur in the reasonably foreseeable future.

II.

Upon determining that one or more of the enumerated bases for termination exist in a given case, the district court then analyzes whether termination would serve the child's best interests.  In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998).  A best-interests analysis requires the district court to balance the parent's and the child's interests under the specific circumstances to see which interests predominate.  In re Welfare of Udstuen,  349 N.W.2d 300, 304 (Minn. App. 1984).

P.R.F. is a child with special needs.  His guardian ad litem and psychologist testified that a permanent, structured, and nurturing home is of the utmost importance to his interests.  The district court found that termination would provide P.R.F. with the "highest level of finality and permanency," and that appellant has failed to provide this type of home in the past.  The guardian ad litem stated that, in her opinion, appellant would not be able to assume that responsibility in the near future.  The district court noted that P.R.F. had been in foster care for fifteen months, and appellant did little to fulfill the conditions required of her.  It found that it is likely that she will be unable to improve her parenting behavior. 

In D.T.J.,this court concluded that termination of a mother's rights was in the best interests of the children because they had been in foster care over a year and the mother had not been able to correct the conditions that led to that foster-care placement.  D.T.J., 554 N.W.2d at 110.  The case under consideration is no different.  Appellant's inability to substantially complete any of the case plans demonstrates that she is incapable of putting P.R.F.'s special needs ahead of her own.   The district court properly determined that P.R.F. would be better served if he is with someone who can.  Thus, the district court did not err in concluding that termination of parental rights is in the best interests of the child.

III.

            Appellant argues that the state should place P.R.F. in the care of Jeff McSorley, father of P.R.F.'s half-sister B.M-C., as a less-restrictive alternative to terminating appellant's parental rights.  She argues this would be in P.R.F.'s best interests because of the significant contact with his siblings and the positive impact Jeff McSorley has had on B.M-C.

            "[An] order for the transfer of legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodian."  Minn. Stat. § 260C.201, subd. 11(d)(1)(i) (2002).  The district court found that transferring custody to Jeff McSorley is not in P.R.F.'s best interests.  First, Jeff McSorley's testimony indicates his poor understanding of P.R.F.'s special needs.  McSorley said that he had not noticed any delays in P.R.F.'s intellectual functioning and would not describe him as a child with special needs.  Further, he has a criminal record, including a conviction of assault in the second degree, and is in arrears in child support in excess of $15,000.  The district court's finding of fact support its determination that transferring custody to Jeff McSorley is not in P.F.R.'s best interests.

            Affirmed.