In the Matter of the Welfare of the Children of: R.H. and L.H., n/k/a L.S., parents.

In the Matter of the Welfare of the Children of: R.H. and L.H., n/k/a L.S., parents. A04-2310, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2310

 

In the Matter of the Welfare of the Children of:

R.H. and L.H., n/k/a L.S., parents

 

Filed August 23, 2005

Affirmed

Toussaint, Chief Judge

 

Lyons County District Court

File Nos. J4-04-50263 and JX-04-50266

  Paul Elmer Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN 56002-1056 (for appellants H.L., S.L., & H.R.)

 

Tricia Barbara Zimmer, Assistant Lyon County Attorney, 607 West Main Street, Marshall, MN 56528 (for respondent Lyon County Human Services)

 

Donna Rathje, 1193 County Road 5, Balaton, MN 56115 (Guardian ad litem)

 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

On appeal from an order terminating their parental rights to their child, J.H., appellant-mother L.S. and appellant-father R.H. argue that (1) the termination order inadequately addresses J.H.'s best interests; (2) the district court erred in failing to determine J.H.'s preference or find that he was not of a suitable age to express a preference when J.H. was not represented by counsel; (3) the district court's findings regarding reasonable efforts are insufficient; and (4) the evidence is insufficient to support the termination of parental rights (TPR).  Because the evidence is sufficient to support the district court's findings of fact and the court properly applied the law, we affirm.

FACTS

            In 1995, J.H., d.o.b. April 20, 1991, was found to be a child in need of protection or services (CHIPS) based on findings that he was (1) in need of special care and treatment due to his physical and mental conditions and the inability of his parent, guardian, or other custodian to provide it; and (2) without proper parental care due to the emotional, mental, or physical disability, or state of immaturity of the parent, guardian, or other custodian.  Until November 2002, J.H. remained in his parents' home with protective supervision by Lincoln, Lyon and Murray Human Services (LLMHS).  Concerns at the time included J.H.'s delayed cognitive, social, adaptive and communication skills; J.H.'s poor hygiene; the condition of the home; and parental noncooperation in teaching J.H. basic skills, including toilet training and dressing.

            LLMHS provided numerous services to the family.  Services were tailored to meet the needs of R.H. and L.S.  The services included child protection case management; communicare nursing services; public health services; adult developmental disability case management; semi-independent living skills; family focus skills; adult activity program; community support person; early childhood special education; early intervention education committee; respite care; daycare; transportation; homemaker services; psychological evaluations; a neuropsychological evaluation; and individual counseling and psychiatric services.

            The family did not consistently comply or follow through with services, and, overall, the areas of concern did not improve.  R.H. and L.S. separated in July 2003 and divorced in February 2004.  After the separation, J.H. lived for a period with R.H., and R.H.'s compliance with case plan goals, including keeping his home safe and clean and bathing J.H. daily and keeping him in clean clothes, improved.  L.S. remains unable to parent J.H. appropriately and provide a safe and clean home.

The district court terminated R.H.'s and L.S.'s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) (refusing or neglecting to comply with parental duties, and reasonable efforts failed to correct conditions leading to out-of-home placement), (4) (palpable unfitness), and (5) (2004) (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).

D E C I S I O N

 

I.

Best interests

 

On appeal 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) (citation omitted).  On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

Juvenile courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  The petitioner must prove one or more of the criteria 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 one criterion is sufficient, the primary consideration in all TPR determinations is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2004).  Juvenile courts are required to make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). 

Appellants argue that the district court's findings are inadequate because they merely summarize testimony.  A district court's findings must be affirmatively stated as findings of the court and not merely a recitation of witnesses' observations.  Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (concluding that findings were inadequate when the district court prefaced its statements with phrases such as "petitioner claims," "according to petitioner's application," and "respondent asserts" and did not affirmatively state is findings as findings of the court); see also Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997) (applying Dean rule to findings that simply recited witnesses' observations without affirmatively finding that those observations were true).

Here, the district court, in many of its findings, used the terms "testifies" and "opines."  Although the district court did not specifically find credible the witnesses whose testimony and opinions it cited, the evidence cited in the findings supports the TPR.  Also, following the detailed findings citing witnesses' testimony and opinions, the district court found that R.H. and L.S. would be unable in the reasonably foreseeable future to care for J.H.'s needs.  Reading the district court's order as a whole, we can infer that it found credible the witnesses whose testimony and opinions it cited.  See In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App.1996) (stating this court views the evidence and its reasonable inferences in the light most favorable to the prevailing party).

            Appellants also argue that under In re Termination of Parental Rights of Tanghe, 672 N.W.2d 623 (Minn. App. 2003), the district court's findings do not adequately address J.H.'s best interests.  In remanding for specific findings, the Tanghe court explained that the determination of a child's best interests generally is not susceptible to an appellate court's global review of a record because such a review would involve credibility determinations and balancing statutory criteria, matters that are committed to the district court's discretion.  Id. at 625.  To be adequate, best-interests findings must facilitate effective appellate review, provide insight into which facts or opinions were most persuasive of the ultimate decision, and demonstrate the court's comprehensive consideration of the statutory criteria.  Id. at 626.[1]

            The best-interests analysis for TPR proceedings requires the district court to balance the child's interest in preserving the parent-child relationship, the parent's interest in preserving the parent-child relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  "Competing interests include such things as a stable environment, health considerations and the child's preferences."  Id. "Where the interests of parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7.

            Although the district court's findings do not expressly balance J.H.'s and appellants' interests in preserving the parent-child relationship, the district court made detailed findings addressing J.H.'s competing interests in a stable environment and in having his special needs met; the deficiencies in R.H.'s and L.S.'s parenting; and the opinions of the Guardian Ad Litems (GALS) and LLMHS staff that termination would be in J.H.'s best interests.  The district court's findings on J.H.'s best interests, which included a specific finding that termination was in J.H.'s best interest, are sufficient to satisfy the requirements for adequacy stated in Tanghe.

II.

J.H.'s preference

            Appellants argue that, because J.H. was not represented by counsel, the district court erred in failing to either determine his preference or find that he was not of a suitable age to express a preference.  "In any juvenile protection matter where the child is not represented by counsel, the court shall determine the child's preferences regarding the proceedings, if the child is of suitable age to express a preference."  Minn. R. Juv. Prot. P. 25.02, subd. 4.  While the record includes some evidence that J.H. wanted to remain with his parents, the record generally supports the TPR.  In light of the district court's consideration of the evidence regarding J.H.'s preference and the detailed findings favoring termination, the lack of a finding as to J.H.'s preference was harmless error and, accordingly, not a basis for reversal.  See Minn. R. Civ. P. 61 (errors that do not affect parties' substantial rights must be disregarded); In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error); cf. In re Application of Saxton, 309 N.W.2d 298, 301, 02 (Minn.1981) (exclusion of children's testimony regarding their preference as to changing surname was harmless error because it did not appear that their testimony might reasonably have changed the result if it had been admitted).

III.

            Reasonable efforts

Under Minn. Stat. § 260C.301, subd. 1(b)(5), 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 or parents have 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.

 

The district court applied the presumption that reasonable efforts have failed.  The court made detailed findings on the services provided by the county and the parties lack of compliance and progress with the case plan.

            Appellants argue that the district court's findings are insufficient under Minn. Stat. § 260.012(c) (2004).  As an alternative to findings regarding the adequacy and appropriateness of services, Minn. Stat. § 260.012(c) expressly permits the court to "determine that provision of services or further services for the purpose of rehabilitation is futile and therefore unreasonable under the circumstances. . . ."  The district court specifically found, "Reasonable efforts would be futile and therefore unreasonable."  The district court's findings regarding reasonable efforts are sufficient.

IV.

Sufficiency of the evidence

Neglect

            Minn. Stat. § 260C.301, subd. 1(b)(2) states that parental rights may be terminated upon a showing

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 record contains evidence that appellants have substantially and repeatedly failed to provide J.H. with necessary food, clothing, shelter, and appropriate education.  The home was extremely cluttered.  There was an ongoing problem with too much food and rotting food.  Laundry was not being done.  The home was not kept clean.  Appellants were not consistent in getting J.H. to school on time and were not able to appropriately address his special needs.  We have already addressed the issue of reasonable efforts.  The evidence supports the termination for neglect.

            Palpable unfitness

Minn. Stat. § 260C.301, subd. 1(b)(4) states that parental rights may be terminated upon a showing

that 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.

 

            In addition to the evidence supporting the termination for neglect, both R.H. and L.S. are lower functioning and have mental-health diagnoses.  The record contains evidence that their mental illnesses negatively impact their parenting abilities.  Despite efforts by LLMHS to tailor services to meet R.H.'s and L.S.'s needs, compliance with the case plan was not achieved.  The evidence supports the termination for palpable unfitness.

            Out-of-home placement and failure of reasonable efforts

Minn. Stat. § 260C.301, subd. 1(b)(5) states that parental rights may be terminated upon a showing

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.

 

            At the time of the TPR hearing, J.H. was over age eight and had been out of the home for more than 12 of the preceding 22 months.  Out-of-home placement plans were filed with the court.  Conditions leading to the placement were not corrected, although there was evidence that R.H. made some progress following his separation from L.S.  We have already addressed the issue of reasonable efforts.  The evidence supports the termination under Minn. Stat. § 260C.301, subd. 1(b)(5).

            Affirmed.

[1] Appellants argue that the best-interests analyses in Tanghe and In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987) are inconsistent with In re Welfare of M.D.O., 462 N.W.2d 370, 379 (Minn. 1990), in which the supreme court first determined the child's best interests and then balanced those against the parents' and child's interests in maintaining the parent-child relationship.  But M.G. was decided before the 1988 statutory amendment declaring that the child's best interests is the paramount consideration in determining whether to terminate parental rights.  And Tanghe did not reach the balancing because the best-interests findings were inconsistent.