In the Matter of the Welfare of the Child of K.C.W and D.W., Parents.

In the Matter of the Welfare of the Child of K.C.W and D.W., Parents. A06-1052, Court of Appeals Unpublished, February 6, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1052

 

In the Matter of the Welfare of the Child of

K.C.W and D.W., Parents

 

Filed February 6, 2007

Affirmed

Ross, Judge

 

Hennepin County District Court

File Nos.254261/J4-05-052908 and

J7-04-063570

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant D.W.)

 

Mike Freeman, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and

 

Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Eric S. Rehm, 202 U.S. Bank Building, 301 West Burnsville Parkway, Burnsville, MN 55337 (for guardian ad litem)

 

 

Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

On appeal from an order terminating his parental rights to his son, D.W. argues that the record does not support the district court's findings that he failed to abide by the duties of the parent-child relationship, he failed to correct the conditions leading to his son's out-of-home placement, and his son had been neglected and in foster care.  He further argues that the county failed to make reasonable efforts toward reunification and unilaterally terminated its services to D.W.  Because clear and convincing evidence supports the district court's findings that three statutory grounds justify terminating D.W.'s parental rights, and because the department made reasonable efforts toward reunification, we affirm.

FACTS

This appeal arises from a district court order terminating D.W.'s parental rights to his son, A.T.W.  In September 2004, the Hennepin County Human Services and Public Health Department learned that one-year-old A.T.W. had been left in the care of an eight-year-old and two other young children.  A.T.W. had burn marks on his body and untreated ring worm.  At the time, A.T.W.'s mother, K.C.W., had sole custody.  K.C.W. had been incarcerated in Illinois since June 2004, and D.W. had been incarcerated in Minnesota since March 2004.  D.W. told county officials that he left A.T.W. in the care of his fiancée, V.W.

The county filed a petition alleging that A.T.W. was in need of protection or services.  The district court issued an order for protective care and continued A.T.W. in out-of-home placement.  When A.T.W. began working with social services personnel, they identified significant neurological, behavioral, and psychological problems.  He was diagnosed with an attachment disorder and his behavior included banging his head against walls, crying, screaming, hitting, biting, spitting, picking at his hands, pulling out his hair, and eating excessively (including inedible objects, such as drywall, clothing, and the stuffing from a toy).  He also has significant difficulty sleeping, for which he takes prescription medicine.

In March 2005, the county filed a petition to terminate K.C.W.'s and D.W.'s parental rights.  D.W. signed an admission of parentage and agreed to start a case plan to gain custody of A.T.W.  He also signed an out-of-home-placement plan designed to foster reunification.  Central to the eventual termination of parental rights, the plan stated that A.T.W. "needs a home environment that understands and can address his emotional/behavioral, medical, physical and safety needs."  It asserted three goals:  safety, permanency, and well-being.  With respect to safety, the plan specifically required A.T.W.'s parents to complete a parenting assessment, participate in parenting services, demonstrate sobriety, abstain from committing criminal acts, and avoid contact with known criminals or others who would be unsafe or inappropriate company for A.T.W.  With respect to permanency, the plan stressed that A.T.W.'s parents needed to "provide a safe, suitable, crime free, and stable home for [A.T.W.]"

D.W. was released from prison in April 2005 after serving a sentence for third-degree possession of a controlled substance.  In May, the court adjudicated A.T.W. a child in need of protection or services and in June ordered both K.C.W. and D.W. to complete a case plan.  D.W.'s case plan required D.W. to abstain from using illegal substances, provide urinalysis samples as requested by the assigned social worker, complete a parenting assessment and follow the resulting recommendations, avoid criminal activity, comply with his parole conditions, visit A.T.W. regularly, and cooperate and maintain contact with the assigned social worker.

In September 2005, K.C.W. agreed to transfer custody to D.W., and the department supported the transfer based on D.W.'s apparent case-plan progress.  The district court transferred custody, but stayed the order for 60 days.  The day after the court's order, however, police executed a search warrant at D.W.'s residence based on an informant's tip that drugs were being sold from the apartment.  D.W. lived in the two-bedroom apartment with V.W., who was then his wife, and two of V.W.'s three children.  In the adults' bedroom, police seized 44.75 grams of cocaine base, a semi-automatic handgun, a box of ammunition, a loaded magazine, and a digital scale with drug residue on it.  Officers found another 1.4 grams of cocaine in the kitchen, along with a plastic container that police suspected was used to prepare the drugs.  Officers arrested V.W., who was present when they executed the warrant.  D.W. was not home and was never charged with a crime.  The court later dismissed the criminal charges against V.W., but it made a finding of maltreatment by both V.W. and D.W.

Based on the evidence discovered in the search, the district court vacated its stayed order transferring custody to D.W. and scheduled a contested hearing on the permanency petition for February 2006.  In November 2005, the court suspended D.W.'s visitation after A.T.W.'s therapist advised his social worker that visits were no longer in A.T.W.'s best interests because the visits caused emotional regression.

In April 2006, the district court terminated D.W.'s parental rights based on three statutory grounds.  The court concluded that D.W. had substantially, continuously, or repeatedly refused or neglected to comply with the duties of the parent-child relationship, that despite reasonable efforts by the county, D.W. failed to correct the conditions leading to the child-in-need-of-protection-or-services adjudication, and that A.T.W. was neglected and in foster care.  The court denied D.W.'s motion for a new trial.  D.W. appeals, arguing that the record does not support the district court's findings on any of the stated grounds for termination and that the county failed to make reasonable efforts to reunify D.W. and A.T.W.  The district court also terminated K.C.W.'s parental rights, but she does not appeal the decision.

D E C I S I O N

A district court may involuntarily terminate parental rights on clear and convincing evidence that a statutory basis for termination exists.  Minn. R. Juv. Prot. P. 39.04, subd. 1; see also Minn. Stat. § 260C.301, subd. 1(b) (2004) (listing grounds for involuntary termination of parental rights).  The child's best interests are the central consideration, and we generally presume that remaining with the parent is in the child's best interests.  Minn. Stat. § 260C.301, subd. 7 (2004) (stating that bests interests of child is paramount consideration); In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) (stating presumption that remaining with parent ordinarily serves best interests of child).  A court may not terminate parental rights unless it also finds that social service agencies made reasonable efforts to reunify the parent and child or finds that reasonable efforts were not required.  Minn. Stat. § 260C.301, subd. 8 (2004).  Overall, the "evidence must relate to conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  Although a court must exercise caution before terminating a familial relationship, the court also must consider the likelihood of a parent's inability to care for his or her child within the foreseeable future.  A.D., 535 N.W.2d at 647, 649.

We affirm the district court's determination that clear and convincing evidence supports the termination of D.W.'s parental rights.  D.W.'s challenge to the district court's findings rests primarily on his contention that the department did not make reasonable efforts to reunify D.W. and his son and that the department summarily terminated all services after police discovered drugs in his apartment.  He further argues that the court placed undue weight on the evidence borne of the search in terminating his rights.  D.W.'s assertion that the department wholly terminated services lacks a factual basis, and the record includes clear and convincing evidence to support all three statutory bases on which the district court terminated his parental rights.

Reasonable Efforts

Because D.W.'s challenge to the department's efforts toward reunification pervades his arguments on the statutory bases for termination, we first address whether the department's efforts were reasonable.  To determine whether the agency has made reasonable reunification efforts, the court must consider six factors addressing whether the services offered were (1) relevant to the safety and protection of the child; (2) adequate to meet the child's and family's needs; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic in the circumstances of the individual case.  Minn. Stat. § 260.012(c) (2004); In re Children of T.A.A., 702 N.W.2d 703, 709 (Minn. 2005).  A reasonableness inquiry also requires consideration of the length of time the county has been involved with the family and the quality of the effort made.  In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).  The district court found that all of these factors were satisfied and that the department's efforts were reasonable.

The record does not support D.W.'s repeated claims that the department did not make reasonable efforts to reunite D.W. with his son or that the department terminated all services in September 2005.  After the apartment search, D.W. continued to have an opportunity to visit A.T.W., had parenting classes available to him, submitted urinalysis samples, and received housing assistance.  A social worker testified that D.W. missed all but ten minutes of one scheduled visit after the search occurred, failed to show up for the next visit, and then attempted to reschedule the visits.  He eventually scheduled a visit for late November, but the court suspended visitation before that visit could occur.  The only halted service was D.W.'s work with the Fraser Child and Family Center.  Fraser chose to cease services when it learned that the court had revoked the transfer of custody and the department was moving forward on the termination-of-parental-rights petition.  A therapist at Fraser testified that its policy is to assist parents only when reunification will occur in the near future.  D.W. did not complete all of his parenting classes, but those classes were not offered through Fraser and his noncompletion is not attributable to the department.  The record supports the district court's finding that the department made reasonable efforts toward reunification.

Compliance with Duties of Parent-Child Relationship

In addition to his reasonable-efforts challenge, D.W. argues that the record does not support any of the grounds for termination relied on by the district court.  The district court may terminate parental rights if a 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 . . . care and control necessary for the child's physical, mental, or emotional health and development."  Minn. Stat. § 260C.301, subd. 1(b)(2).  Failure to comply with key elements of a court-ordered case plan may support a finding that a parent failed to satisfy the duties and responsibilities in the parent-child relationship.  In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003).

The record supports the district court's findings and decision to terminate on this ground.  The district court found that D.W. failed to substantially comply with his case plan and the out-of-home-placement plan.  D.W. asserts that he complied with the case plan in every respect, except for planned sessions at Fraser, which he attributes to the precipitous cancellation of its services.  The termination proceedings arose from the department's discovery in September 2004 that A.T.W. was left in an unsafe environment under the care of neither of his parents.  The record reveals that A.T.W.'s paramount need was stabilityphysical, mental, and emotionalin a safe environment.  The different controlling plans therefore required D.W. to maintain a crime-free environment.  D.W. correctly states that the court was prepared to transfer custody to him in early September 2005.  At that point, he had completed a parenting assessment, completed six weeks of a ten-week parenting class, visited A.T.W. regularly, and submitted urinalysis samples that tested negative, except for two that tested positive for alcohol in May 2005.  (We note that D.W. also missed fourteen sample submissions between April and September 2005, and these are treated as positive under the department's policy.)  But the search results and D.W.'s post-search actions regarding the case plan invited a second look.

Although D.W. claims that evidence from the search was the only factor that changed the court's and the department's direction, in our view he minimizes the significance of the event.  A social worker explained why the search results prompted a reevaluation of D.W.'s compliance and changed the department's opinion.  She noted that, at the hearing to transfer custody, D.W. had testified that he was capable of providing a safe, stable, crime-free home for A.T.W., and he was willing to do so.  But the findings by the police the next day, she observed, contradicted his testimony, and if the court had not stayed its transfer order, A.T.W. likely would have been in that home.  She testified that the criminal environment would be especially damaging to A.T.W. because of his special needs.  She opined that termination of parental rights was in A.T.W.'s best interests because D.W. "has not demonstrated . . . that he has an understanding of how important it is for [A.T.W.] to be in a safe and stable home."  Similarly, A.T.W.'s guardian ad litem testified that she also had concerns about D.W., even before the search, and she also recommended termination of parental rights.

D.W. argues that the record evidence does not associate him with the drugs and weapons that police found in his apartment.  But he gave vague testimony regarding his living situation.  He admitted that he moved into the apartment with V.W. when he was released from prison.  Asked if he lived at the apartment in September 2005, D.W. replied that he was "in and out" and that it was his residence "that everybody knew of."  D.W. then invoked his Fifth Amendment right against self-incrimination to avoid answering where he had been staying.  He later testified, "I always stayed [at the apartment].  I just wasn't there every night," and he acknowledged that he kept his belongings at the apartment.  The district court specifically inferred from D.W.'s testimony and invocation of his Fifth Amendment rights that D.W. was "involved in or aware of the criminal activity that was discovered during the search" and that he had not done anything since then to ensure that he would not be involved or associated with crime in the future.  See Crockarell v. Crockarell, 631 N.W.2d 829, 833-34 (Minn.App. 2001) (holding that, although witness may invoke right against self-incrimination in civil proceeding, district court may make negative inferences from invocation ofright),review denied (Minn. Oct. 16, 2001).  We defer to the district court's credibility determinations, and the record supports the court's inferences.  See Minn. R. Civ. P. 52.01 (stating that appellate court gives due deference to district court's credibility determinations and will uphold the court's factual findings unless clearly erroneous).  D.W.'s contention that the evidence does not demonstrate his involvement with the firearm and drugs misses the chief concern, which is his willingness to associate with those engaged in criminal activity and his failure to maintain a safe and crime-free environment for the child.

Other facts outside the search discoveries also support the district court's findings.  At the time of the contested hearing, D.W. was still with his wife, who, if D.W. is believed, was involved in criminal activity in their shared bedroom.  They moved from their apartment after the search.  Between his release from prison in April 2005 and the hearing in February 2006, D.W. had lived in at least six different homes.  He also missed scheduled visits after the search, which violates his case-plan requirement to visit A.T.W. regularly.  And although D.W. had been attending parenting classes, he failed to attend any classes after the transfer-of-custody hearing.  The broader consideration to be taken from the search is not what D.W. presents as a sudden and unsupported change of position regarding his compliance, but that, even after receiving the varied services, he continued to live in an unsafe environment that contravened the provisions of his case plan and the needs of A.T.W.  And the record supports the understanding that he intended to bring the child into it.The overarching safety and stability goals that underlie reunification efforts in the termination-of-rights setting ensure that "when required and appropriate, reasonable efforts have been made by the social services agency to reunite the child with the child's parents in a home that is safe and permanent."  Minn. Stat. § 260C.001, subd. 3 (2004) (emphasis added). 

D.W.'s testimony also suggests his inability to foster A.T.W.'s physical, mental, or emotional health and development.  The therapist who had been working individually with A.T.W. testified that, whoever takes care of A.T.W. "is going to . . . require a lot of parenting skill" because A.T.W. has neurological and psychological problems that require "really intensive parenting."  Similarly, another therapist, two social workers, and A.T.W.'s foster mother for the preceding seventeen months all testified to the significant attention A.T.W. needs, his difficulty dealing with even slight transitions, and the need to introduce any changes slowly.  Despite testimony by five professionals stressing the need for A.T.W.'s stability and slow transitions, D.W. appeared to disregard their perspective.  He could not identify A.T.W.'s individual therapist, even after she testified, and he testified that, "[a] kid can't stay in one zone forever and say ‘This is it. This is my life.  I do this every day.' Something has to be new.  I just feel like that."  He also indicated that he intended to gradually remove A.T.W. from his prescription medication, and to stop A.T.W. from sleeping in a crib, an arrangement that had been made to remedy A.T.W.'s behavioral and sleeping problems.  His testimony does not indicate that D.W. appreciates the rooted nature of A.T.W.'s challenges.  Clear and convincing evidence supports the district court's decision to terminate parental rights on this statutory ground.

Failure to Correct Conditions Leading to Out-of-Home Placement

The record also supports the district court's finding that D.W.'s failure to correct the conditions leading to out-of-home placement supported termination of parental rights.  The court may terminate parental rights if, "following the child's placement out of the home, reasonable efforts . . . have failed to correct the conditions leading to the child's placement."  Id. § 260C.301, subd. 1(b)(5).  A.T.W. was placed outside of the home in September 2004 when he was fourteen months old.  Both of his parents were incarcerated and he was not in a supervised and safe environment.  As the department soon learned, A.T.W. has a host of behavioral and emotional problems needing significant attention.  D.W.'s pattern of frequent moves and his association with a residence containing drugs and a handgun strongly suggest a failure to provide A.T.W. with the stability he needs.  As the social worker noted, the out-of-home-placement plan D.W. agreed to was drafted while both of A.T.W.'s parents were incarcerated.  Given this history of imprisonment and absence from A.T.W.'s early life, the goals of a crime-free and stable environment were especially important.  The record supports the court's finding that D.W. did not demonstrate an ability to provide A.T.W. with the needed stable, permanent home and to engage in the intensive parenting A.T.W. requires.

Neglected Child in Foster Care

Finally, the record supports the district court's finding that a third ground for termination existed.  The district court may terminate parental rights if it finds that the child is neglected and in foster care.  Id., subd. 1(b)(8).  A child is "neglected and in foster care" if the child (1) has been placed in foster care by court order; (2) has parents whose circumstances, condition, or conduct prevent returning to them; and (3) has parents who, despite the availability of needed rehabilitative services, failed to make reasonable efforts to adjust their circumstances, condition, or conduct.  Id. § 260C.007, subd. 24 (2004).  The third component of the definition is at issue here.  In addressing termination on this statutory basis, the court looks to the reasonable expectations of a parent and "what actions a parent has taken and the circumstances in which a parent finds himself."  R.W., 678 N.W.2d at 57.

The reasonable expectations of the court and department included D.W. living in a crime-free environment and providing a home that could address A.T.W.'s special needs.  The same factors that justify termination on the other two statutory grounds also support termination on this one.  D.W.'s actions indicate that, despite the department's efforts toward reunification, he failed to meet essential expectations.  The record therefore supports the court's finding that A.T.W. is neglected and in foster care.

Best Interests

The record overall demonstrates that three statutory bases support terminating D.W.'s parental rights, and termination is in A.T.W.'s best interests.  By the end of the hearing in February 2006, A.T.W. was about thirty months old and had not lived with either parent for at least twenty months.  A hearing to determine permanent placement of a child typically occurs within twelve months of an out-of-home placement.  Minn. Stat. § 260C.201, subd. 11(a) (2004).  In this case, because the transfer of custody was revoked, the hearing occurred after A.T.W. had been in foster care for seventeen months.  Finding a stable, permanent home for A.T.W. was imperative.  D.W. has identified no grounds for us to put aside the district court's determination that, based on his most recent behavior and testimony at trial, he cannot provide that kind of home within the reasonably foreseeable future and that termination of his parental rights is in A.T.W.'s best interests.

Affirmed.