In the Matter of the Welfare of the Child of N.A.W. and V.G.W., Jr., Parents.

In the Matter of the Welfare of the Child of N.A.W. and V.G.W., Jr., Parents. A05-517, A05-519, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and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

A05-517
A05-519

 

In the Matter of the Welfare of

the Child of N.A.W. and V.G.W., Jr.,

Parents.

 

Filed November 22, 2005

Affirmed
Klaphake, Judge

 

Stearns County District Court

File No. J0-04-51449

 

John Reep, 919 W. St. Germain, St. Cloud, MN  56301 (for appellant mother N.A.W.)

 

Andrew R. Pearson, 802 W. St. Germain, #103, St. Cloud, MN  56301 (for appellant father V.G.W., Jr.)

 

Janelle P. Kendall, Stearns County Attorney, Brenda L. Theis, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4701; and

 

Thomas E. Kramer, Engel Law Firm, 925 First Street South, P.O. Box 638, St. Cloud, MN 56302 (for respondent Stearns County)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In these consolidated appeals, appellant father V.G.W., Jr. and appellant mother N.A.W. challenge the district court's termination of their parental rights to their son, J.A.W., who was born in September 2004.  The district court determined that appellants failed to successfully rebut the presumption that they are palpably unfit, which arose because their rights to the child's five older siblings were involuntarily terminated in September 2003 after appellant father was convicted of first-degree criminal sexual conduct involving his oldest daughter.

            Appellant father argues that because the evidence shows that he is a treatable sex offender, the district court erred in terminating his parental rights.  Appellant mother argues that because she made progress in her case plan and no evidence shows that either she or the father ever abused this child, the district court erred in terminating her parental rights.

            Because neither party successfully rebutted the statutory presumption of palpable unfitness, we affirm.

D E C I S I O N

            On appeal in a termination of parental rights proceeding, we are limited to determining whether "the district court's findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  While we defer to the district court's findings, we are required to exercise great caution and should affirm a termination of parental rights only for "grave and weighty reasons."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  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 for terminating parental rights).

            A parent's rights may be terminated if he or she is palpably unfit to parent.  Minn. Stat. § 260C.301, subd. 1(b)(4).  "It is presumed that a parent is palpably unfit . . . upon a showing that the parent's parental rights to one or more other children were involuntarily terminated."  Id.  Once the presumption applies, the parent has the burden to prove fitness; the absence of other reasons to terminate parental rights is not sufficient to overcome the presumption.  In re Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).

            A parent's rights may also be terminated if a "child has experienced egregious harm in the parent's care which is of a nature, duration, or chronicity that indicates a lack of regard for the child's well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent's care."  Minn. Stat. § 260C.301, subd. 1(b)(6).  "Egregious harm" is defined as the "infliction of bodily harm to a child . . . which demonstrates a grossly inadequate ability to provide minimally adequate parental care."  Minn. Stat. § 260C.007, subd. 14 (2004).  It includes "conduct towards a child that constitutes criminal sexual conduct."  Id., subd. 14(10).  Consistent with the definition of "egregious harm," courts have read these grounds as not requiring that the parent has inflicted harm on his or her own child, but that a child has experienced harm in the parent's care that demonstrates the parent's grossly inadequate ability to provide minimally adequate care to any child.  In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998).

            Here, the county established that appellant parents' rights to five other children were involuntarily terminated in September 2003, after appellant father was convicted of first-degree criminal sexual conduct involving his oldest daughter.  The district court determined that appellants failed to rebut the presumption of palpable unfitness because they intended to continue their ongoing relationship with each other and because their circumstances "are virtually the same as they existed at the time of the termination of their rights to their other five children." 

            Appellant mother insists that she is not palpably unfit because there is no evidence that J.A.W. has been abused by her or by appellant father and because she has made "significant strides in becoming a better parent and following the demanding case plan."  Appellant mother cites evidence supporting that she completed many of the requirements of the case plan for her other children, including an unsuccessful attempt to obtain an order for protection, her completion of a 20-week domestic abuse program, her participation in family therapy with her other five children, and her attendance at individual therapy.

            However, the burden was on appellant mother to present evidence to rebut the presumption of palpable unfitness.  She failed to present any evidence, and the existing evidence establishes that the circumstances have not changed since her rights to her five other children were terminated:  she continues to remain in her relationship with appellant father, even though she knows that he has not completed sex-offender treatment, and she has been unwilling or unable to protect her children or to acknowledge the harm they suffered at the hands of their father.

            Moreover, the county did not need to show that anyone had abused this particular child.  The county merely needed to show that appellant mother's rights to other children had been terminated because they had experienced egregious harm attributable to her and the father.  The district court thus did not err in determining that appellant mother failed to successfully rebut the presumption of unfitness.

            Appellant father argues that termination of his parental rights is not in the child's best interests because he is a treatable sex offender who has made progress in treatment and has acknowledged the harm he perpetrated on his other children.  Appellant father also argues that, but for his financial problems, he would have progressed further in treatment.  He speculates that he could complete treatment in the foreseeable future, if he had not been discharged from the program for financial reasons and if he were placed in a group especially for persons of borderline intellect.

            Appellant father, however, has ignored the recommendations of professionals involved in this case that he should have no contact with any minor children until he completes sex-offender treatment.  The licensed psychologist involved in this case testified that while appellant father is treatable, his progress often stalls and he becomes angry and bitter; the psychologist estimated that it would be at least two years before appellant father might complete his treatment program.

            Given this, we cannot conclude that the district court erred in determining that termination of appellant father's rights is in the child's best interests.  The district court properly found that it was in the child's best interests to terminate parental rights, "taking into consideration the findings stated above, the length of time this child has been in placement and the child's need for permanency, as well as the child's need for stability, nurturing, and attachment."

            Affirmed.