In the Matter of the Welfare of the Children of: T.S., Parent.

In the Matter of the Welfare of the Children of: T.S., Parent. A05-242, Court of Appeals Unpublished, September 20, 2005.

This opinion will be unpublished and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

A05-242

 

In the Matter of the Welfare of the Children of: T.S., Parent

 

Filed September 20, 2005

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. J3-04-051562/Fam ID 248137

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN  55415 (for respondent Hennepin County Human Services Department)

 

Howard S. Kleyman, 2400 Hennepin Avenue, Minneapolis, MN  55405 (for guardian-ad-litem Alvin Abrahamson)

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant-mother T.S.)

 

Elizabeth A. F. Scott, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for father Michael Hodgeman)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from the order terminating her parental rights to her two children, appellant-mother argues that the juvenile court (1) erred in terminating her parental rights when the stipulated documentary evidence showed that she was working on her case plan and that she could keep her sons safe; and (2) abused its discretion by refusing to allow appellant's counsel a short time to speak with potential witnesses and to offer to the court whatever evidence counsel obtained from speaking with them.  We affirm.

FACTS

Appellant-mother T.S. (appellant) has two children, T.S (T.S.).[1] born August 1, 1999, and V.R.,[2] born May 7, 2001.  The children were placed in protective custody on July 28, 2003, and a petition alleging that the children were in need of protection or services (CHIPS petition) was filed on July 30, 2003.  The CHIPS petition alleged that there had been a report of physical abuse of T.S. based on bruises to his left eye, his left ear, his temple, and his shoulder.  The CHIPS petition noted a history of involvement with Child Protection Services.  In August 2002, there was a finding of maltreatment against appellant for neglecting the children by leaving them unattended in the bath tub and alone in their room at St. Anne's Shelter.  The other involvement with Child Protection Services occurred in October 2002, when there was a report concerning the children's hygiene.  The CHIPS petition was granted in an order filed on October 1, 2003.

The court-approved interim case plan for appellant required her to update her parenting and mental-health assessments.  The county conducted a parenting assessment that indicated that appellant has areas of strength and weakness.  Her strength is that she is committed to the care of her children, and her weakness is that she is "lacking in some vital pieces of parenting information especially those related to parent-child boundaries, role, using consequences, building upon children's strengths, and teaching empathy."  Other areas of concern identified in the parental assessment are appellant's weak verbal skills and the wide difference between her verbal and her nonverbal skills.  The assessment states that "[t]his type of cognitive structure may put [appellant] at some risk of tending to respond with physical actions rather than verbal directions." 

Respondent Hennepin County Human Services Department provided mental-health services to appellant.  Appellant was reluctant to participate in therapy, but she agreed to a treatment plan with a therapist, which included looking at her family-of-origin issues and how they impact her parenting.  Appellant had been meeting with therapists regularly and was open to disclosing personal information and to engaging in the therapeutic process.  In August 2004, Dr. Mary Cichon, appellant's therapist, reported that appellant had progressed on her case plan and was beginning to address her own issues of past abuse, which the department considered pivotal to appellant understanding her own parenting behavior.  The therapist did not recommend reunification but felt that overnight visits would be appropriate.

Cichon noted that appellant "verbalizes an awareness and seemingly a willingness to change her parenting style to match the needs of her active young boys."  But Cichon also had significant concerns, including the number of injuries to V.R. as the family had increased contact; V.R.'s reports that appellant's boyfriend, D.W., injured him; and appellant's account of how the injuries occurred.  The department also noted concern that despite T.S.'s report that it was appellant who hit him, and V.R.'s report that appellant's live-in boyfriend, D.W., hit him, appellant remained steadfast in her denial that she or D.W. hit the children.

Both children are "high energy" and require constant supervision.  In February 2004, the brothers were moved to a different foster home because of their high level of activity.  V.R. is resistant to adult directives, has tantrums, falls to the floor, screams, bites his brother, is very quick, and needs to be watched closely.  The brothers can be very aggressive with each other but at other times play well together.  T.S. has had falls while in foster care; including a January 4, 2004 incident when he hit himself in the eye with a metal car and a January 14, 2004 incident when he fell and hit the side of his face on a door, which caused a large bruise on his left cheek. 

V.R. was reported as having difficulty adjusting to his new home and his play-style was negative, inducing T.S. into "aggressive and assaultive situations."  V.R.'s play-style is so aggressive that the foster parent separates the boys most of the day in order to keep them both safe.  A therapist reported that the children need more structure and suggested family therapy for appellant, D.W., and the two boys.  The therapist acknowledged that the "boys require CONSTANT supervision."

Concurrent with the reunification efforts, on February 4, 2004, the department filed a petition to terminate appellant's parental rights.  The petition alleged that appellant was "currently working on her court-ordered case plan" but had not "sufficiently progressed on the case plan services for the Department to recommend reunification at this time."  The petition alleges that termination of parental rights is supported under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2004), and that it is in the children's best interest to terminate parental rights.

A report of maltreatment alleging physical abuse of V.R. by D.W. was substantiated in May 2004.  The investigator stated that a multi-pronged bruise was found on V.R.'s bottom.  Appellant stated that the injury was sustained on an amusement-park ride.  Shortly after the reported abuse, the district court ordered D.W. to participate in family therapy with appellant and the boys.

On July 24, 2004, social worker Bob Hyland was notified that V.R. had been treated at a hospital for a laceration in the back if his head.  The children were with appellant during an unsupervised visit.  Appellant stated that V.R. fell while wearing "character slippers."[3]  Hyland informed the court about a pending maltreatment investigation for the alleged maltreatment of V.R. and requested that the court order supervised visits pending the outcome of the assessment.  On July 28, 2004, the juvenile court ordered that visits be supervised.  

In a prehearing report filed August 16, 2004, Hyland stated that

[Appellant] has been a reluctant participant in her case plan services while this writer has been assigned the case.  [Appellant] sees herself as the victim of an overzealous Child Protection system.  [Appellant] has responded to the case-plan's requirements as hoops she needs to jump through to get her children back and go on with her life.  It is difficult, if not impossible, to treat some one that is unable to acknowledge that they have a problem.  What makes this case even more unfortunate is the possibility that [appellant's] parenting issues are related to her own past abuse.  But the paramount concern in child protection cases is keeping children safe.  Despite the oversight of the Department and the court, the abuse has continued to occur.  While the Department is hopeful that the Family Group Conference produces an acceptable outcome for the boys, the Department recommends proceeding with the permanency petition.

 

The hearing on the petition was held on October 5, 2004.  Appellant stipulated to the admission of documents, waived the right to present witnesses, and agreed to permit the court to decide the case based on the written submissions.  The parties also stipulated that the department provided an appropriate case plan for appellant and made reasonable efforts to reunify the children with appellant.  The court continued the hearing until October 25, 2004, to hear testimony from the maternal grandmother, who was proposed as guardian for T.S. 

The juvenile court found that appellant had not substantially complied with the case plan and that she had not corrected the conditions that led to the out-of-home placement.  The court concluded that there was clear and convincing evidence that parental rights should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(5), (8), and that it is in the best interests of the children that all parental rights be terminated.  Based on these conclusions, the court ordered that appellant's parental rights to both children are terminated.  The court denied appellant's motion for a new trial, and this appeal followed.

D E C I S I O N

            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).  The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2004) (listing nine criteria).  The petitioner must show that the conditions justifying termination exist at the time of trial and will continue for an indefinite period of time.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  "[T]he evidence must address conditions that exist at the time of the hearing. . . .  When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations and citation omitted).  The primary consideration in all termination determinations is the best interests of the children.  Minn. Stat. § 260C.301, subd. 7 (2004).

1.         Termination of Parental Rights

The district court concluded that clear and convincing evidence supported termination under Minn. Stat. § 260C.301, subd. 1(b)(5) (reasonable efforts have failed to correct the conditions leading to CHIPS determination), and Minn. Stat.
§ 260C.301, subd. 1(b)(8) (2004) (child is neglected and in foster care).   

Under Minn. Stat. § 260C.301, subd. 1(b)(5), the juvenile court may terminate all rights of a parent to a child if the court finds "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."  T.S. and V.R. were placed out of the home on July 28, 2003.  Therefore, the issue before the juvenile court was whether, following this placement, reasonable efforts under the direction of the court failed to correct the conditions leading to the placement.  The condition that led to the out-of-home placement was that the children were victims of physical abuse.

Under the statute,   

[i]t is presumed that reasonable efforts [to correct the conditions leading to the placement] 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 . . . ;

            (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.

 

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

            At the time of trial in October 2004, the children had resided outside the parental home under court order for a cumulative period of more than 12 months, and the court had approved the out-of-home placement plan.  Appellant stipulated that the department provided an appropriate case plan and made reasonable efforts to reunify the children with appellant, and the district court found that the department made reasonable efforts to offer appellant services to assist in correcting the conditions that led to out-of-home placement.  Appellant does not dispute that the record establishes the first, second, and fourth elements of the statutory presumption that reasonable efforts have failed to correct the conditions leading to the placement.

            Appellant argues that the juvenile court erred in terminating her parental rights when the stipulated documentary evidence showed that she was working on her case plan and that she could keep her sons safe.  Appellant contends that "the documentary evidence and testimony before the juvenile court showed that, in October, 2004, conditions were much better than they were in the summer of 2003, or even in July of 2004 when the visitation conditions were changed." 

We agree that the record demonstrates that appellant cooperated with the county and that she made progress toward completing her case-plan goals.  But the third element of the statutory presumption requires more than progress; it requires that the conditions leading to the out-of-home placement be corrected.  The district court found that "[d]espite [appellant's] participation with services, [appellant] has not sufficiently progressed on the case plan services for the Department to recommend reunification at this time.  The court-ordered case plan has not corrected the conditions that led to the children's out-of-home placement[.]"  The record supports this finding.

In an August 6, 2004 letter to social worker Hyland, appellant's therapist expressed her concern that during the time that appellant and D.W. have had increased contact with the children in preparation for their possible return home, there have been two occasions when V.R. has had bruises or injuries and has reported that it was D.W. who caused them.  Between March 20, 2004 and July 27, 2004, there were 11 instances when the children returned to their foster home with injuries after unsupervised visits at appellant's home.  A report of maltreatment of V.R. by D.W. during an unsupervised visit with appellant in May 2004 was substantiated.  After supervised visits were reinstated on July 28, 2004, there were no documented injuries to either child. 

We understand appellant's argument that termination could have been avoided in this case by giving appellant more time to accomplish the goals of her case plan.  But even though there was evidence showing that appellant was making progress on her case plan, the statutory presumption that reasonable efforts have failed to correct the conditions leading to the placement is satisfied when the conditions leading to the placement have not been corrected by the time "a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months."  Minn. Stat § 260C.301, subd. 1(b)(5)(i).  At the time of trial, the children had been out of the parental home under court order for this period, and although the conditions that led to the out-of-home placement had improved, they had not been corrected.  Therefore, there is no basis for us to conclude that the juvenile court erred when it concluded that clear and convincing evidence supported termination under Minn. Stat. § 260C.301, subd. 1(b)(5).  Because we have concluded that the juvenile court did not err when it ordered termination under Minn. Stat. § 260C.301, subd. 1(b)(5), we will not address the juvenile court's conclusion that termination was also supported under Minn. Stat. § 260C.301, subd. 1(b)(8).

2.         Refusal to allow appellant's counsel time to speak with potential witnesses

On the Saturday before the Monday, October 25, 2004 hearing on the termination petition, appellant's counsel received a taped telephone message from appellant reporting that her sons' two teachers had told her that the boys said that neither appellant nor D.W. caused the July 24, 2004 injury to V.R. that resulted in the revocation of unsupervised visits.  At the October 25 hearing, appellant's counsel asked that he be allowed to speak with the teachers and to offer to the court whatever evidence he learned from speaking with them.  The juvenile court denied the request.

Appellant argues that the juvenile court abused its discretion by refusing to allow appellant's counsel a short time to verify the report that allegedly came from the boys' teachers.  The parties dispute the nature of the request appellant's counsel made to the juvenile court.  Appellant analyzes the request as a motion to reopen the hearing, and respondent analyzes the request as an evidentiary issue and as a motion for a continuance.  It is not clear from the transcript what appellant's counsel intended the request to be, but it is not necessary to determine whether the request should be analyzed as a motion to reopen, a motion for a continuance, or an evidentiary issue because regardless of which of these three it is, in order to obtain relief on appeal, appellant must establish prejudice as a result of the juvenile court's actions.  In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994).  This court will find that the district court's decision prejudiced the party when the denial materially affects the outcome of the trial.  State v. Buschkopf, 373 N.W.2d 756, 769 (Minn. 1985), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990).

Appellant has not shown that the failure to hear testimony from the teachers regarding V.R.'s July 24 injury materially affected the outcome of the trial.  Appellant argues that it was that incident that drove the department's decision to proceed with termination instead of reunification.  But the department's decision to proceed with termination is not a decision of the juvenile court.  Therefore, even if there would not have been a trial if the department had not decided to proceed with termination, appellant has not explained how a decision of the juvenile court materially affected the outcome of the trial.

            Affirmed.

[1] T.S.'s father voluntarily terminated his parental rights and is not a party to this appeal.

[2]  V.R.'s father did not appear at the trial, was held in default, and his parental rights were terminated.  He is not a party to this appeal.

[3] The "character slippers" were slippers that depicted a cartoon character.