In the Matter of the Welfare of the Child of: K.A.W. and J.O.W., Parents.

In the Matter of the Welfare of the Child of: K.A.W. and J.O.W., Parents. A06-133, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and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

A06-133

 

In the Matter of the Welfare of the Child of:

 

K.A.W. and J.O.W.,

Parents.

 

Filed August 22, 2006

Affirmed

Dietzen, Judge

 

Clay County District Court

File No. J9-05-50500

 

Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58101-6017 (for appellant K.A.W.)

 

Cheryl R. Duysen, Assistant Clay County Attorney, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent Clay County Social Services)

 

Jolinda Michels, 448 Clearview Court, Moorhead, MN 56560 (guardian ad litem)

 

J.O.W., 714 Eighth Street South, Moorhead, MN 56560 (pro se respondent)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court order terminating her parental rights, arguing that respondent failed to make reasonable efforts at rehabilitation and reunification, that she corrected the conditions leading to the out-of-home placement, and that termination is not in the child's best interests.  Because the district court properly applied the law and its decision is supported by clear and convincing evidence, we affirm.

FACTS

 

            Appellant K.A.W. and J.O.W. are the parents of J.L.W., born February 12, 2003.  Appellant has three older children from previous relationships who are not subject to this appeal.  J.O.W.'s parental rights were terminated by default and are not contested on appeal. 

            Appellant has a significant history of chemical dependency.  Between June 2002 and February 2004, appellant was convicted of two felonies for controlled substance crimes; and domestic assault, check forgery, and theft, which all stemmed from appellant's drug abuse.  In March 2004, a Child in Need of Protective Services (CHIPS) petition was filed by respondent Clay County Social Services based on appellant's commission of the domestic assault and prescription drug abuse.  As part of the resolution of the petition, the court ordered appellant to participate in therapy, submit to random drug tests, and follow through with probation conditions.  J.L.W.'s father was granted physical custody, and he placed J.L.W. with her paternal aunt and uncle until appellant regained custody. 

            In March 2005, appellant tested positive for methamphetamine and J.L.W. was again removed from appellant's custody and placed with her paternal aunt and uncle.  Appellant's court-approved case plan required her to provide a chemical free environment for J.L.W. by completing chemical dependency treatment and aftercare, submitting to random chemical testing, providing safe, consistent, and stable housing, and following probation conditions. 

            On March 15, 2005, appellant entered court-ordered in-patient treatment at Fergus Falls Regional Treatment Center (FFRTC), where she was treated for chemical dependency.  Respondent arranged approximately ten visits between appellant and J.L.W. at the treatment center.  The visits were scheduled for two-hour periods, but appellant often requested that J.L.W. be picked up 30 to 45 minutes early. 

            After completing the in-patient program, appellant transferred to a halfway house.  Within one week of admission, appellant was discharged from the halfway house for methamphetamine use, in direct violation of her case plan and probation conditions.  As a result, appellant was incarcerated for approximately six weeks and visitation with J.L.W. was suspended. 

            Appellant was then required to attend out-patient treatment as part of her case plan, with visitations with J.L.W. set to resume as soon as appellant arranged her treatment schedule.  After a three week delay, appellant set up her out-patient treatment.  Prior to the first scheduled visit, appellant failed to attend a treatment session, tested positive for methamphetamines, and was incarcerated.  Appellant's incarceration lasted from August 2, 2005 to September 14, 2005, during which time visitation with J.L.W. was again suspended. 

Appellant was subsequently court-ordered to in-patient treatment at Willmar Regional Treatment Center (WRTC).  Appellant was originally scheduled to be discharged in October 2005, but the date was moved back due to her failure to focus on treatment.  It was recommended that appellant spend at least four to six months at a halfway house after completion of the WRTC program. 

            Respondent filed a petition to terminate appellant's parental rights to J.L.W. on the grounds that appellant refused or neglected to comply with her parental duties, was palpably unfit to parent, and reasonable efforts had failed to correct the chemical dependency issues leading to J.L.W.'s out-of-home placement.  At trial, appellant and eleven witnesses testified, including the Guardian Ad Litem (GAL), appellant's former and current caseworkers, and other social service and treatment program professionals. 

            Appellant's caseworkers and social worker, the GAL, and various treatment professionals who had worked with appellant concluded that her risk of relapse was high and expressed doubt as to her ability to meet her case plan goals of sobriety and stability.   Appellant's current treatment professional at WRTC indicated that appellant was compliant and had a "fair to good" prognosis for recovery, but admitted that it would be difficult for appellant to focus on sobriety and parenting at the same time.  Both the GAL and appellant's current caseworker testified that it was in the best interests of J.L.W. to remain with her aunt and uncle for a possible adoption.  In her testimony, appellant admitted to being chemically dependent, failing to follow through with prior out-patient treatment programs, and that she would not have attended treatment absent the CHIPS action and probation violations, but testified that she is ready to be successful at treatment and would have a "minimal" risk of relapse. 

            The district court made forty-seven findings of fact, including that, "[w]hen left to her own judgment and abilities, [appellant] has not been able to achieve and maintain sobriety[,]" and "has only maintained sobriety while incarcerated or placed by the court in an inpatient treatment setting."  The court concluded that "[a]t this point in time, the evidence strongly indicates that [appellant] will not be able to provide a chemical free environment for [J.L.W.]; nor will she be able to provide safe, consistent and stable housing for herself and her children in the reasonably foreseeable future."  The district court terminated appellant's parental rights to J.L.W. because, under the statutory presumption in Minn. Stat. § 260C.301, subd. 1(b)(5), reasonable efforts failed to correct the conditions leading to J.L.W.'s placement, and termination was in J.L.W.'s best interests.   This appeal follows. 

D E C I S I O N

I.

           

            Appellant argues that the district court erred by ordering termination of her parental rights on the basis of Minn. Stat. § 260C.301, subd. 1(b)(5) (2004).  On appeal from a termination of parental rights, "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).  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).  While this court gives deference to the district court's decision, "it will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). 

            District courts may order termination of parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b).  The petitioner must prove one or more of the statutory 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).  Because a child's best interests are the paramount consideration in TPR proceedings, the district court may not terminate parental rights unless it is in the child's best interests, even if one or more of the statutory criteria for termination exist.  In re Welfare of D.J.N., 568 N.W.2d 170, 177 (Minn. App. 1997).  District 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). 

            Here, the district court ordered termination on a single statutory ground, Minn. Stat. § 260C.301, subd. 1(b)(5).  Under this ground, a district court may terminate parental rights if it 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."  Id.  When a child is less than eights years old, it is presumed that reasonable efforts have failed if (1) the child has resided out of the parental home for six months; (2) a court-approved out-of-home placement plan is in place; (3) conditions leading to the out-of-home placement have not been corrected; and (4) the social services agency made reasonable efforts to rehabilitate the parent and reunite the family.  Id. 

Appellant concedes the first two requirements of the statutory presumption in section 260C.301, subdivision 1(b)(5), i.e., that J.L.W. resided out of the parental home for the statutory period and that the court approved an out-of-home placement plan, but argues that the conditions leading to out-of-home placement, i.e., her chemical dependence, were corrected, and respondent failed to make reasonable efforts to rehabilitate her and reunite her with J.L.W.

A.        Conditions Leading to Out-of-Home Placement

Appellant's chemical dependency and its effect on her ability to care for J.L.W. was the condition leading to the out-of-home placement.  The district court found that appellant failed to correct this condition because she was not able to achieve and maintain sobriety outside of an in-patient treatment or jail setting.  The record supports this finding.  It is undisputed that appellant relapsed twice, with the relapses occurring shortly after release from in-patient treatment and incarceration.  At the time of trial, appellant was in in-patient treatment and was facing another four to six months at a halfway house upon completion of that program.  Various professionals who had worked with appellant on her chemical dependency expressed doubt that she would be able to maintain sobriety and provide a stable home in the reasonably foreseeable future, with the most optimistic prognosis being that appellant had only a "fair to good" chance of successful recovery.

The crux of appellant's argument, however, is that she was abstaining from using chemicals and had demonstrated a sincere desire to remain sober at the time of the TPR proceedings.  But appellant's abstinence at that time was attributable to the fact that she was participating in court-ordered in-patient treatment, and a brief period of hopeful abstinence is not sufficient to rebut the substantial evidence that appellant has pervasive and unresolved chemical dependency issues.  See in re Welfare of J.L.L., 396 N.W.2d 647, 652 (Minn. App. 1986) (minimal improvement not sufficient); see also In re Welfare of J.D.L., 522 N.W.2d 364, 369 n.4 (Minn. App. 1994) (appellant's testimony that he now had a "different attitude" insufficient basis to believe sufficient changes would occur in the foreseeable future).  And the district court was entitled to consider the longstanding nature of appellant's problems and her many failures in treatment programs in concluding that her chemical dependency would not be corrected within the reasonably foreseeable future.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980) (court may consider the success of past treatment efforts when predicting the foreseeable future). 

B.        Reasonable Efforts

"Reasonable efforts" at rehabilitation are services that "go beyond mere matters of form so as to include real, genuine assistance."  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990) (citation omitted), review denied (Minn. July 6, 1990).  The length and quality of the county's involvement is also relevant.  In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).  The district court found that respondent made reasonable efforts to rehabilitate appellant and reunite her with J.L.W., including arranging visitations and making referrals to appropriate treatment programs.  The record supports this finding. 

Appellant's caseworker testified that she arranged ten visits with J.L.W. while appellant was in in-patient treatment at FFRTC, but that other opportunities for visitation were suspended because of appellant's periods of incarceration, delays in arranging for out-patient treatment, and failures to leave contact information with the social service agency.  And the county provided professional home-based services, crisis management services, referrals to outpatient treatment programs, and respite daycare and transportation services to appellant.  Appellant admitted that the various treatment programs were appropriate and that the programs had failed as a result of her unwillingness to face her chemical dependency issues. 

Because the district court's findings are supported by clear and convincing evidence, the district court did not err in ruling that the requirements for termination under Minn. Stat. § 260C.301, subd. 1(b)(5) were satisfied. 

II.

            Appellant also argues that termination of her parental rights is not in the best interests of J.L.W. because she is a "nurturing and appropriate" parent when sober.  Because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the district court may not terminate parental rights if the record does not show that termination is in the child's best interests, even if one or more of the statutory criteria for termination exist.  In re Welfare of D.J.N., 568 N.W.2d 170, 177 (Minn. App. 1997).  A best-interests analysis requires the balancing of 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. 

            The district court found that J.L.W. "needs and deserves to live in a chemical free environment and to have a safe, consistent and stable home[,]" appellant is "unable to maintain a safe and sober home environment for [J.L.W.] as a result of her addiction to chemicals[,]" and J.L.W. is "happy and well adjusted in [her relative foster home]."  Based on the undisputed evidence of appellant's multiple relapses, testimony of professionals regarding appellant's current and future inability to maintain sobriety and provide a stable environment for J.L.W., and the fact that J.L.W. has spent more than half of her young life in relative foster care placement, the district court's conclusion that termination is in the best interests of the child is supported by clear and convincing evidence. 

            Affirmed.