In the Matter of the Welfare of the Children of: J.M.M. (A06-1487) and K.L.M. (A06-1398), Parents.

In the Matter of the Welfare of the Children of: J.M.M. (A06-1487) and K.L.M. (A06-1398), Parents. A06-1398, A06-1487, Court of Appeals Unpublished, January 23, 2007.

This opinion will be unpublished and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

A06-1398
A06-1487

 

 

In the Matter of the

Welfare of the Children of:

J.M.M. (A06-1487) and

K.L.M. (A06-1398),

Parents.

 

 

Filed January 23, 2007

Affirmed
Crippen, Judge*

 

Anoka County District Court

File No. J0-06-50006

 

Michael C. Hager, 301 Fourth Avenue South, Suite 270N, Minneapolis, MN 55415 (for appellant J.M.M. (A06-1487))

 

Samantha J. Gemberling, Gemberling Law Office, 826 Como Avenue, St. Paul, MN 55103 (for appellant K.L.M. (A06-1398))

 

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Bryan D. Frantz, Assistant County Attorneys, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent Anoka County)

 

Mary Pfeiffer, P.O. Box 305, Anoka, MN 55303 (guardian ad litem)

 

            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellants J.M.M. (father) and K.L.M. (mother) challenge the district court's termination of their parental rights; the court applied a presumption of palpable unfitness based on a prior involuntary termination of parental rights, found that appellants failed to rebut the presumption, and also found that termination was in the best interests of the five children at issue.  Because the record supports the presumption and contains evidence sufficient to support the district court's findings, we affirm.

FACTS

            Appellants are the biological parents of H.E.M. (age 18), J.M.M. (age 13), M.J.M. (age 13), T.R.M. (age 12), C.K.M. (age 10), M.T.M. (age 9), and M.M.M. (age 9).  In 1998, Hennepin County filed a CHIPS petition as to all of the above-listed children, following multiple findings of maltreatment.  The district court then adjudicated the children as in need of protective services based on three separate statutory grounds.  During the review process, the children were ordered into out-of-home placement.  The family was eventually reunited, and the child protection proceedings terminated in August 2000 for reasons that are not clear on the current record. 

            In April 2004, appellants placed M.M.M., then age 6, in the care of her maternal grandmother, S.N., who was an alcoholic.  Following a surgical procedure, S.N. was unable to care for M.M.M. so she placed the child with a family friend, K.K.  K.K. was also an alcoholic. 

            In September 2004, the county learned that M.M.M. had been abandoned by appellants and removed her to St. Joseph's Home for Children.  That same month the county filed a petition to terminate appellants' parental rights as to M.M.M.  Appellant mother appeared at the hearing and did not object to the proceeding because, as she put it, M.M.M. had special needs that they as parents could not meet.  The court found that while in appellants' care M.M.M. was diagnosed with failure to thrive and had unexplained rib fractures and ulcerations in her mouth.  The court also found that while in the care of S.N. and K.K., M.M.M. did not receive the necessary medical care and had scars on her feet from wearing shoes that were too small.  The court observed that the county had made reasonable efforts to rehabilitate the family, which were rejected, and concluded that appellants' parental rights should be terminated because they abandoned M.M.M., neglected her, and neglected to comply with the duties of the child-parent relationship.  The order terminating appellants' parental rights was filed in January 2005.

            Sometime between late 2004 and early 2005, appellants relocated the family to Ramsey, Minnesota.  In February 2005, Anoka County became involved with the family when a stranger found T.R.M., then age 10, walking alone by the side of a road in the early evening.  Upon being contacted, the police returned T.R.M. to her home, where appellant father did not seem concerned by her absence. 

            In March 2005, Anoka County filed a CHIPS petition as to appellants' six remaining children.  The children were removed from the home, and appellants declined to visit their children before the CHIPS hearing.  In April 2005, the children were adjudicated as in need of protective services, and the five youngest children were placed in foster care.  In May 2005, the district court approved a case plan that called for, among other things, psychological evaluations, parenting evaluations, parenting training, random urinalysis, and blood analysis.  Between July 2005 and January 2006, appellants attended parenting sessions but failed to improve their skills.  Anoka County filed a termination-of-parental-rights petition as to the five youngest children in January 2006.

            The parties agreed to bifurcate the trial, with the first portion dedicated to a determination of whether appellants should be presumed unfit to parent based on a prior involuntary termination of parental rights, a presumption that would put on appellants the burden of rebuttal.  Based on the evidence produced, the district court concluded that the presumption of unfitness applied.  The court also concluded that appellants failed to rebut the presumption because appellant father is chemically dependent, does not have a parent-child relationship with the children, and cannot control his violent temper; and appellant mother is mentally and emotionally unable to recognize and enforce appropriate relationships in the family.  Finally, the district court concluded that the best interests of each child required termination. 

            In June 2006, the district court terminated appellants' parental rights to J.M.M., M.J.M., T.R.M., C.K.M., and M.T.M.                             Appellants' motion for a new trial was denied.

D E C I S I O N

            On appeal, we review termination-of-parental-rights orders to ascertain whether the district court's findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous.  In re Child of A.S., 698 N.W.2d 190, 194 (Minn. App. 2005), review denied (Minn. Sept. 20, 2005).  The district court is entitled to deference because of its superior ability to examine the evidence, but the findings must reflect that the county proved its case by clear and convincing evidence.  Id.  The best interests of the child must be the paramount concern.  Id. 

            Appellants argue that the district court erred in finding that the presumption of unfitness applied.  They also argue that if the presumption applied, the record does not sustain the district court's findings that appellants failed to rebut that presumption and that termination is in the best interests of the children. 

1.

            A district court may terminate parental rights upon a finding of at least one of the statutory criteria set forth in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Parental rights may be terminated if "a parent is palpably unfit to be a party to the parent and child relationship."  Id., subd. 1(b)(4).  Under this statute, it is presumed "that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent's parental rights to one or more other children were involuntarily terminated."  Id.  Because appellants' rights to M.M.M. were involuntarily terminated in Hennepin County in 2005, the district court found that the presumption applied.

            Appellants argue that the district court erred because the county did not prove by clear and convincing evidence that the termination of their parental rights to M.M.M. was involuntary.  Appellants contend that the termination was, in fact, a voluntary termination under Minn. Stat. § 260C.301, subd. 1(a) (2004), because appellant mother appeared and agreed to the termination.  Alternatively, appellants argue that the order is too ambiguous and unclear to support a finding of involuntariness.  The plain language of the court's termination order refutes appellants' contentions.

            The order states that appellant mother "had no objection to the Termination of Parental Rights" proceeding, which was initiated by the county, and that appellant father failed to appear.  See In re Welfare of Child of W.L.P., 678 N.W.2d 703, 712 (Minn. App. 2004) (holding that admission to allegations in involuntary-termination petition does not convert petition into voluntary-termination petition).  The order then makes findings of fact addressing the county's efforts to reunify the family and appellants' failure to comply with the reunification case plan.  See Minn. Stat. § 260.012(a) (Supp. 2005) (requiring reasonable efforts to reunify family once child adjudicated in need of protective services).  The order does not address the voluntary-termination standard of "good cause."  See Minn. Stat. § 260C.301, subd. 1(a) (allowing voluntary termination if parents demonstrate good cause).  In its conclusions of law, the 2005 order holds that appellants' rights should be terminated under the involuntary-termination section of the statute.  The order clearly indicates that the proceedings were involuntary in nature.[1]

            Appellants also make numerous attempts to characterize the termination as voluntary, despite its outward appearance.  They argue that the termination was voluntary because (1) Anoka County has acted as though the termination was voluntary; (2) the district court erred in finding that appellant neither took affirmative steps nor set forth good cause for voluntary termination that would have converted the termination into a voluntary termination under W.L.P.; and (3) appellant mother thought she was voluntarily terminating her rights, did not waive her right to a trial, did not understand the different consequences of voluntary and involuntary termination, and told the court that M.M.M. had special needs the parties could not meet. 

            We do not address these arguments individually because each constitutes a collateral attack on the validity of the Hennepin County termination order.  A termination order is an appealable order, and the time for taking appeal is set at 30 days.  Minn. R. Juv. Prot. P. 47.02.  The Hennepin County order was filed on January 13, 2005, and this appeal was not filed until the middle of 2006.  Thus, the time to challenge the order's validity and meaning has passed and cannot be resurrected in this case. 

            Once the district court admitted the order into evidence, it had before it clear and convincing evidence of prior involuntary termination.  Consequently, the court's finding that the presumption of palpable unfitness applied to appellants was not erroneous.

2.

            When a parent is presumed unfit, the parent must "affirmatively and actively demonstrate her or his ability to successfully parent a child."  In re Welfare of D.L.R.D., 656 N.W.2d 247, 251 (Minn. App. 2003).  Improvements or advancements in a parent's parenting ability that are only recent are not dispositive.  In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985).  The presumption also relieves the county from any duty to make reasonable efforts to reunite children with their parents.  Minn. Stat. § 260.012(a)(2); A.S., 698 N.W.2d at 196. 

            Appellant mother argues that she rebutted the presumption because she was making progress in the parenting-skills sessions, she was bonded to the children, and she participated in activities with the children during visits.  Appellant father argues that he rebutted the presumption because he is the primary caretaker, there was positive testimony at the termination hearing about his parenting abilities, and the evidence assembled from Hennepin County child-protection proceedings is inadequate.  The record suggests otherwise.

            As the district court found, the record buttresses rather than rebuts the presumption that appellants are palpably unfit to parent.  Although it was not obligated to do so, Anoka County developed a case plan aimed at reuniting the family.  Even with the county's assistance, appellants failed to affirmatively demonstrate their ability to raise children.  The record shows that while appellants initially made progress, their parenting skills had not improved after six months of in-home parenting education.  The record also demonstrates that appellant father failed to comply with the chemical-health evaluation and that he regularly abuses alcohol and marijuana.  Furthermore, appellants failed to adequately complete psychological evaluations because they withheld relevant information from the evaluator.  Based on this and other evidence, the district court did not err in finding that appellant father is incapable of controlling his violent temper and appellant mother does not have the mental or emotional health or capacity to enforce appropriate social relationships in the family. 

            The deficiencies that led to the CHIPS actions in both Hennepin County and Anoka County remained at the time of the termination proceeding.  The record sufficiently evidences those deficiencies, and the district court did not err in its ultimate finding that appellants failed to rebut the presumption of unfitness.

            Despite appellants' failure to rebut the presumption of unfitness, the best interests of the child are still the primary concern in a termination case.  When addressing the best interests of the child, the district court must balance three factors:  "(1) the child's interests in preserving the parent-child relationship; (2) the parents' interest in preserving the parent-child relationship; and (3) any competing interest of the child."  W.L.P. 678 N.W.2d at 711 (quotation omitted). 

            Appellants argue that the court's finding that termination is in the children's best interests was clearly erroneous because it did not make sufficiently specific findings of fact on the matter, because concerns about safety in the home were undermined by the county's decision to omit the eldest child from the petition, and because the court did not address either the bonds between the children and appellant mother or contact between the siblings. 

            At the hearing, various social workers and foster parents testified as to the health and welfare of the children.  Their testimony included recollections of conversations with the children in which the children explained that they were sometimes forced to sleep on the floor because of bed-wetting problems, in a "urine room," or outside in the yard on a piece of carpet or under a tree.  The children also told these witnesses that they were physically abused, forced to go without food for long periods of time, and duct-taped to lawn chairs and placed in front of the television.  Additional testimony established that some or all of the children suffer from bad nightmares, make violent threats, have short and violent tempers, are socially dysfunctional, and inflict harm on themselves, one another, or animals.

            In its order, the district court separately addressed each child; made personalized findings of maltreatment, abuse, and special needs; and concluded that termination was in each child's best interests.  The county's discretionary election to exclude the eldest child, H.E.M., now 18, from its petition does not erode the grave and disturbing evidence that supports that determination.  Contact with siblings is not a dispositive topic in these proceedings but is something the agency must consider in a subsequent placement decision.  Minn. Stat. § 260C.212, subd. 2(b)(7) (2004).  The district court concluded by noting that there was clear and convincing evidence requiring termination notwithstanding the "inherent tragedy in [terminating appellants' rights], particularly in regards to the bond that exists between [appellant mother] and the children." 

            The amassed evidence convincingly presents a picture of a chaotic, abusive, and neglectful household.  There was testimony that appellants were incapable of maintaining order, struck the children, did not properly feed them, and abused drugs and alcohol in the children's presence.  The district court's finding that termination is in the children's best interests was sufficiently supported by substantial evidence and was not clearly erroneous.

            Affirmed.

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

[1]          Independently, appellant mother argues that the involuntary basis for termination stated in the Hennepin County order was likely necessary to terminate the rights of appellant father, who did not appear at the hearing and was in default.  Again, the order's plain language refutes the argument because it consistently refers to the parents rather than a parent.  The order states that the parents have rejected rehabilitation services, abandoned the child, and failed to comply with duties imposed on them by the parent-child relationship.  The involuntary termination therefore applied to both appellants mother and father.