In the Matter of the Welfare of the Children of:  M.L.G., Sr. and J.G., 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This opinion will be unpublished and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

A03-1571

 

 

In the Matter of the Welfare of the Children

of:  M.L.G., Sr. and J.G., Parents.

 

 

Filed May 18, 2004

Affirmed Willis, Judge

 

Ramsey County District Court

File Nos. J0-01-553841, J8-02-556142

 

Laura K. Box, 525 East First Avenue, Shakopee, MN  55379 (for appellant M.L.G., Sr.)

 

Susan Gaertner, Ramsey County Attorney, Angela L. Potts, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN  55102 (for respondent Ramsey County Community Human Services Department)

 

Paul W. Bergstrom, 580 Dayton Avenue, St. Paul, MN  55102 (for respondent guardian ad litem)

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

On appeal from the termination of his parental rights, appellant argues that the district court's findings are erroneous because there was not clear and convincing evidence supporting (1) any statutory ground for termination or (2) the district court's conclusion that termination is in the best interests of the children.  Because we conclude that clear and convincing evidence supports the district court's termination of appellant's parental rights, we affirm.

FACTS

Appellant M.L.G. is the father of E.A.G. and S.M.G., twins who were born on March 31, 1999.  When the children were born, M.L.G. was incarcerated; he was released in March 2003 but because he violated his parole, he was arrested and reincarcerated until June 2003.  In March 2001, the home of J.G., the children's mother, was raided and police discovered seven crack pipes, three bags of marijuana, and $1,600 in cash.  J.G. was arrested and the children, who were present during the raid, were placed in a shelter.  On March 26, 2001, J.G. signed a voluntary-placement agreement for the children.  In June, a child in need of protection or services (CHIPS) petition was filed for both children.  On November 8, 2001, the children were placed in foster care, where they have continuously remained, and on November 13, 2001, they were adjudicated CHIPS.  

            M.L.G. was given two out-of-home placement plans by Ramsey County Community Human Services Department (RCCHSD); the plans were dated April 2001 and December 2001.  The April plan ordered M.L.G. (1) to remain law-abiding, (2) to remain drug-free, (3) to provide safe and stable housing for the family, (4) to submit to random urinalyses(UAs), and (5) to follow his social worker's recommendations.  The December plan additionally ordered M.L.G. to provide the social worker with (1) a list of his medications and (2) written verification of his attendance at parenting groups, AA/NA groups, and counseling.  M.L.G. testified that he was aware of the requirements of his case plans. 

            On December 13, 2002, RCCHSD filed a petition to terminate M.L.G.'s and J.G.'s parental rights.  After a trial on the termination petition, the district court issued an order terminating M.L.G.'s parental rights on four statutory grounds: (1) that reasonable efforts, under the court's direction, failed to correct the conditions leading to the children's out-of-home placements; (2) M.L.G. has refused to comply with parental duties; (3) M.L.G. is palpably unfit to be a party to the parent-and-child relationship; and (4) the children are neglected and in foster care.[1]  The district court also found that termination of M.L.G.'s parental rights is in the children's best interests.  This appeal follows.

D E C I S I O N

The district court may terminate parental rights only if it is proved by clear and convincing evidence that at least one statutory ground for termination exists.  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) (2002) (providing statutory grounds for termination).  When reviewing a district court's findings in a termination proceeding, this court is "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).  The reviewing court will "closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing."  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  To terminate, the district court must find both (a) at least one statutory ground for termination; and (b) that termination is in the child's best interests.  See In re Welfare of Children of R.W., 678 N.W.2d at 54-55 (holding that affirmance of termination of parental rights based solely on best interests was erroneous). 

I.

          Minnesota Statutes section 260C.301, subdivision 1(b)(5), provides that a district court may terminate parental rights if, "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."  It is presumed that reasonable efforts have failed upon a showing that:

(i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months;

(ii) the court has approved the out-of-home placement plan required under section 260C.212 and filed with the court under section 260C.178; 

(iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent . . . [has] not substantially complied with the court's orders and a reasonable case plan; and

(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

 

Minn. Stat. § 260C.301, subd. 1(b)(5). 

M.L.G. argues initially that the district court erred by finding that he had not corrected the conditions leading to the children's out-of-home placement.  When analyzing whether a parent has substantially complied with a case plan, the district court is required to determine whether "significant progress" has been made in meeting the requirements of the plan.  In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999).  The record shows that although M.L.G. complied with some portions of his case plans,such as remaining in contact with the social worker and submitting a list of prescribed medications, he failed to comply with the case plans' major requirements of (1) remaining law-abiding, because when M.L.G. was released from prison on March 3, 2003, he violated his parole within days of being released and was returned to prison; (2) remaining drug-free, because during the 23 days that M.L.G. was not incarcerated he was required to submit to four UAs, and he submitted to only one; and (3) providing written verification of his attendance of parenting classes, AA/NA groups, and counseling.

Further, the record shows that M.L.G. failed to comply with the requirement that he obtain stable housing for his children; until recently he was in prison and, at the time of the trial, he was living in a halfway house.  Although M.L.G. testified in July 2003 that he had signed a lease for an apartment and was planning to reside there beginning August 1, 2003, the district court noted that since 1992, M.L.G. had been convicted of multiple offenses and sentenced to a total of approximately 140 months and concluded that, based on M.L.G.'s history of failing to maintain stable employment and housing, it is unlikely that he "will be successful with [his] current efforts."[2]  The record supports the district court's determination that M.L.G. failed to correct the conditions leading to the children's CHIPS adjudications.

            M.L.G. further argues that the district court erred by finding that RCCHSD made reasonable efforts to rehabilitate him and to reunite his family.  "Reasonable efforts" means "the exercise of due diligence by the responsible social services agency to use appropriate and available services . . . to eliminate the need for removal and reunite the family."  Minn. Stat. § 260.012(b) (2002).  Whether efforts to reunite a family are reasonable "requires consideration of the length of time the county has been involved with the family as well as the quality of effort given."  In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).  The nature of the services that the county must reasonably provide depends on the circumstances of a particular case.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996). 

M.L.G. argues that RCCHSD did not make reasonable efforts because the offered services were "largely directed" at J.G. and not at him.[3]  RCCHSD asserts, however, that M.L.G.'s incarceration "proved to be a significant barrier toward the County's ability to offer community-based services" to him.  The record shows that during the 23 days that M.L.G. was in the community in early 2003 before being reincarcerated, the county social worker (1) provided M.L.G. with an ID card and a bus card, (2) arranged for regular supervised visitation with the children, and (3) offered parenting classes.  Thus, there is clear and convincing evidence that RCCHSD made reasonable efforts to rehabilitate M.L.G. and reunite the family.

II.

Minnesota Statutes section 260C.301, subdivision 1(b)(2), provides that the juvenile court may terminate parental rights if the court finds

that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child's physical, mental, or emotional health and development, if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.

 

The district court found that M.L.G. refused to comply with the duties imposed by the parent-and-child relationship because he failed to (1) maintain and verify his sobriety, (2) provide stable and appropriate housing for the children, and (3) remain law-abiding. 

Because the record shows that M.L.G. did not (1) provide verification that he had remained drug-free by taking the required UAs, (2) provide stable housing for his children, or (3) remain law-abiding, there is clear and convincing evidence that M.L.G.refused or neglected to comply with his parental duties.

III.

The district court also found that M.L.G. is palpably unfit to be a party to the parent-and-child relationship because of (1) his "long history with child protection," (2) his "history of criminal activity and inability, due to constant incarceration, to obtain and maintain safe, stable housing," and (3) his history of unemployment and consequent failure to provide for the children's financial needs.  See Minn. Stat. § 260C.301, subd. 1(b)(4).

[A] parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.

 

Id. 

M.L.G. argues that the district court erred by finding that he is palpably unfit.  But RCCHSD asserts that the evidence shows that M.L.G. could not care appropriately for the children either at the time of trial or in the reasonably foreseeable future because M.L.G. made no showing of how he would meet the emotional, developmental, and physical needs of the children. 

RCCHSD also argues that M.L.G. is palpably unfit to parent the children because he has "such an extensive and continual criminal background" that it is clear that his criminal behavior is "likely to be detrimental to the twins' physical or mental health or morals."  See In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003) (stating that if a "parent's behavior is likely to be detrimental to the children's physical or mental health or morals, the parent can be found palpably unfit and have his parental rights terminated"). 

Because the record shows that M.L.G. has (1) failed to complete the requirements of his case plans by obtaining stable housing and remaining law-abiding and (2) been found guilty of two counts of child endangerment, two counts of being a prohibited person in possession of a firearm, and multiple drug offenses, the evidence is clear and convincing that M.L.G. is palpably unfit to be a party to the parent-and-child relationship.

IV.

The district court also terminated M.L.G.'s parental rights on the ground that the children are neglected and in foster care.  Minnesota Statutes section 260C.301, subdivision 1(b)(8), provides that termination of parental rights is appropriate when a child is neglected and in foster care.  A child is "neglected and in foster care" if the child has been placed in foster care by court order; the parents' circumstances, condition, or conduct prevent the child's return to the family; and the parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to address the problems preventing the child's return.  Minn. Stat. § 260C.007, subd. 24 (2002). 

In determining whether parental rights should be terminated because a child is neglected and in foster care, a district court looks at the length of time the child has been in foster care; the effort the parent has made to adjust circumstances, conduct, or conditions to allow the child's return to the home; the parent's contact with the child preceding the petition; the parent's contact with the responsible agency; the adequacy of services; the availability of relevant services; and the social-service agency's efforts to rehabilitate and reunite.  Minn. Stat. § 260C.163, subd. 9 (2002). 

The district court's finding that the children are neglected and in foster care is supported by clear and convincing evidence because: (1) at the time of the trial, the children had been in foster care for nearly two and one-half years, which was more than half of their lives; (2) M.L.G. has made minimal effort to adjust his circumstances to allow the children's return home; he failed to cooperate with his case plan by remaining law-abiding, by providing verification that he was drug-free, and by providing stable housing for his children; (3) M.L.G.'s incarceration prevented regular and frequent visitation with the children; (4) although M.L.G. remained in regular contact with the social worker during his incarceration, he did not maintain consistent contact with her after his release from prison; (5) the services that RCCHSD provided were appropriate and adequate; and (6) the social worker and the guardian ad litem testified that the children needed permanency and stability in their lives and that additional services would not, in the reasonably foreseeable future, bring about reunification. 

V.

When analyzing the best interests of a child, the court must balance three factors: (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child.  In re Child of Simon, 662 N.W.2d 155, 163-64 (Minn. App. 2003).  The district court found that termination of M.L.G.'s parental rights is in the best interests of the children because M.L.G. (1) has "repeatedly made choices that placed his interests above those of his children," (2) has a history of mental-illness problems, (3) has no experience parenting the children, and (4) has a poor employment and housing record.  The district court further found that the children's need for permanency and stability outweighed M.L.G.'s interest in preserving the parent-child relationship. 

Although M.L.G. asserts that there is no clear and convincing evidence supporting the district court's finding, the record shows that M.L.G. (1) has been incarcerated for most of the children's lives and, thus, has no experience parenting them; (2) has been in prison repeatedly and that, upon his release from prison in March 2003, he almost immediately violated his parole and was returned to prison; (3) has not, since 1992, held a job for longer than approximately six months; and (4) has not been able to provide stable and secure housing for the children.  Further, because the children have been in out-of-home placement for nearly two and one-half years, we conclude that the district court properly found that the children's need for permanency and stability outweighs M.L.G.'s interest in preserving the parent-child relationship.  See In re Welfare of J.R., Jr., 655 N.W.2d 1, 5 (Minn. 2003) (stating that  "delay in the termination of a parent's rights equates to a delay in a child's opportunity to have a permanent home and can seriously affect a child's chance for permanent placement").  Thus, the evidence is clear and convincing that the termination of M.L.G.'s parental rights is in the children's best interests.

Because the record supports the district court's termination of M.L.G.'s parental rights, we affirm.

            Affirmed.

           

[1] Because of her failure to appear for the trial, J.G.'s rights were terminated by default.

[2] The district court also noted that although M.L.G. testified that because he worked the afternoon-to-evening shift at his new job, he was going to put the children in daycare during those hours, M.L.G. further testified that he did not know whether daycare was available during those hours or what its cost would be.

[3] The record shows that while M.L.G. was incarcerated, the following services, among others, were made available to the children's family: the BASIC program, Project Reconnect, foster care and shelter placement, the Pathfinders Program, Project Hope, Ramsey County economic assistance, the Bush Residential Treatment Center, and the Family Group Decision Making program.