In the Matter of the Welfare of the Children of: M.A.C., T.M.M., and S.C., Parents.

In the Matter of the Welfare of the Children of: M.A.C., T.M.M., and S.C., Parents. A06-308, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and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

A06-308

 

 

In the Matter of the Welfare

of the Children of:

M.A.C., T.M.M., and S.C., Parents.

 

 

Filed September 12, 2006

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Kandiyohi County District Court

File No. 34-J0-04-050391

 

 

John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellants)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Boyd Beccue, Kandiyohi County Attorney, Amy Isenor, Assistant County Attorney, 415 Southwest Sixth Street, Willmar, MN 56201 (for respondent)

 

Barbara Borth, William Taylor, Eighth Judicial District Administration Office, 505 Becker Avenue Southwest, Willmar, MN 56203 (guardian ad litems)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellants M.C. and S.C. challenge the district court's termination of their parental rights to their one-year-old daughter.  Appellant M.C. also challenges the termination of her parental rights to her five- and seven-year-old daughters from her previous marriage.  Appellants argue that the district court improperly required them to proceed without counsel, failed to follow the requirements of the Indian Child Welfare Act, and terminated their parental rights without sufficient evidence.  Because substantial evidence supports the termination of M.C.'s parental rights and because appellants presented only vague allegations regarding S.C.'s Indian ancestry, we affirm in part.  But because we conclude that the district court abused its discretion in failing to arrange for counsel when S.C. indicated his inability to employ counsel or to proceed to trial without counsel, we reverse the decision to terminate S.C.'s parental rights and remand. 

D E C I S I O N

I.

            Appellants argue that the district court erred by failing to provide them with an attorney.  The district court's decision whether to appoint counsel in a termination-of-parental-rights (TPR) proceeding is reviewed for abuse of discretion.  See Minn. Stat. § 260C.163, subd. 3(b) (2004).  A finding that a parent waived the right to counsel is reviewed for clear error.  In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000).

            Parents in termination proceedings have a right to the assistance of counsel.  Minn. Stat. § 260C.163, subd. 3(a) (2004); Minn. R. Juv. Prot. P. 25.01.  If a parent is unable to employ counsel, the district court "shall appoint counsel . . . in any case in which it feels that such an appointment is appropriate."  Minn. Stat. § 260C.163, subd. 3(b); see Minn. R. Juv. Prot. P. 25.02, subd. 2.  Whether a waiver of the right to counsel is voluntary and intelligent can be determined by examining "the surrounding circumstances of the case."  G.L.H., 614 N.W.2d at 723.  In G.L.H., the Minnesota Supreme Court found that the parent's waiver was valid because she was repeatedly asked whether she was certain that she wanted to dismiss counsel; she had the benefit of counsel for some period of time; she had previous experience in the criminal justice system; and she was informed that if she fired her attorney she would have to proceed on her own.  Id. at 724. 

              Here, the district court appointed counsel for M.C. in both the initial child-in-need-of-protective-services proceeding and in the TPR proceeding.  In both proceedings, M.C. discharged her counsel.  The district court informed M.C. that discharging her appointed counsel would result in her having to proceed without counsel.  Based on these circumstances, the district court did not clearly err in finding that M.C. validly waived her right to counsel. 

            The district court appointed counsel for S.C. for the initial proceedings in this case, pursuant to county policy for TPR proceedings.  But the court explained to S.C. that the appointed counsel would only continue to represent him through trial if he was financially eligible.  S.C. submitted an application for appointed counsel, indicating that he had earned approximately $8,600 in 2004, that he had no bank accounts or cash, and that he currently earned $10.50 per hour.  The district court denied S.C.'s application, finding him financially ineligible for such assistance. 

            At a pretrial hearing, S.C. indicated that he was still attempting to secure counsel:  "We've done all we can.  The attorneys we've contacted, they want four or five thousand dollars down.  We just don't have that.  We can't do that."  S.C. indicated similar concerns on the first day of trial:  "I'm not prepared to handle this on my own, and I I made an attempt to get an attorney with this.  They've wanted four or five thousand dollars down.  I just don't have the money to do that."  Under these circumstances, where S.C. unsuccessfully attempted to secure counsel and indicated his belief that he was unable to represent himself at trial without counsel, the district court's refusal to provide counsel for S.C. was an abuse of discretion.  We therefore reverse the termination of S.C.'s parental rights and remand to the district court for additional proceedings. 

II.

            Appellants argue that the district court improperly failed to comply with the Indian Child Welfare Act (ICWA).  Under 25 U.S.C. § 1912(a) (2000), a party seeking termination of parental rights to an Indian child must provide notice to the child's tribe and parents:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.

 

25 U.S.C. § 1912(a).  But if the child's tribe is unknown, notice must be given to the Secretary of the Interior:  "If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe."  Id.; see 25 C.F.R. § 23.11(b).

            S.C. stated at a hearing that he believed he was of Indian heritage.  S.C. indicated that his grandmother, now deceased, had told him that she was part French Canadian Indian; S.C.'s parents stated that they were not aware of any Inidian heritage.  The district court ordered S.C. to provide additional information to the county regarding this claim, and a county social worker sent S.C. a letter requesting additional information.  The social worker also sent a letter to the Bureau of Indian Affairs (BIA), requesting assistance because a client with an open child protection case had stated that he might be Indian.  The BIA responded that it could not provide assistance without S.C.'s claimed tribal affiliation or area in which the tribe was located, and without the names and birth dates of family members with possible Indian ancestry.  The social worker unsuccessfully attempted to obtain additional information from S.C.  Because S.C. failed to provide any information, other than vague allegations of Indian heritage, we observe no error in the district court's determination that the ICWA did not apply.    

III.

            Appellants argue that the evidence was insufficient to support the district court's termination of their parental rights.  Because we remand with regard to S.C., we will not address the issue of whether the evidence supports termination of his parental rights. 

            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 bases). 

            The district court terminated M.C.'s parental rights based on Minn. Stat. § 260C.301, subd. 1(b)(4), which authorizes termination when 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.

 

The district court terminated M.C.'s parental rights on the additional basis that authorizes termination when

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[.]

 

Id., subd. 1(b)(2).  Finally, the district court found that "[r]easonable efforts have failed to correct the condition leading to the three children's out-of-home placement" under Minn. Stat. § 260C.301, subd. 1(b)(5). 

            Based on the evidence presented, the district court made numerous and detailed findings to support its decision to terminate M.C.'s parental rights.  The district court noted that following an incident of domestic violence in 2001, in-home services were provided to M.C. to improve her parenting skills.  Social workers expressed concerns because M.C. had no daily routine for the children and no limits on their activities.  Two years later, the county received reports that the children had been found unsupervised on a highway near their home three times in one day.  Additional services were provided. 

            Following a child protection report in 2004, M.C. admitted to engaging in sexual intercourse with S.C. in front of the children and while under the influence of marijuana.  M.C. also admitted to using methamphetamine with her former husband and with S.C. while the children were in her care.  Although M.C. claimed that she was unaware of S.C.'s criminal history, including a 1997 conviction of second-degree attempted criminal sexual conduct, even after she became aware of that history, she continued to take the children to S.C.'s residence.  M.C. could not understand why the county would be concerned about her exposing her two young daughters to a person with S.C.'s criminal record.   

            The children were placed out of the home, and M.C. failed to comply with the case plan and continued to reside with S.C.  Several social workers and visitation center staff noted concerns with M.C.'s parenting during this time, including her failure to set appropriate boundaries, her inability to impose proper discipline, and her strong frustration in trying to care for them.  M.C. failed to comply with the requirement that she submit to random drug testing, although she did begin to comply three months before the trial.  M.C. also failed to attend court-ordered counseling until four months before trial. 

            Regarding the youngest child, the district court noted that M.C. had missed a number of visits and had not formed a bond with the infant.  The district court acknowledged the social workers' concerns that M.C. failed to recognize behavioral signs and exhibited significant problems with feeding the child. 

            The district court also noted M.C.'s repeated decisions to be with S.C. rather than her children until approximately one week before trial.  The district court found this "unreasonable in light of [S.C.]'s refusal to have psychosexual and parental capacity evaluations."  The guardians ad litem also recommended that M.C.'s parental rights be terminated. 

            Appellants' only challenge to these findings on appeal is that the sole evidence against M.C. is from the time when she lived with her former husband.  This challenge is inaccurate.  The district court's findings cite a number of concerns with M.C.'s current behavior.  Because the district court's decision is based on consideration of statutory factors and is supported by clear and convincing evidence, we affirm the termination of M.C.'s parental rights.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.