In the Matter of the Welfare of the Children of: S.M.K. and R.R.R., Parents.

In the Matter of the Welfare of the Children of: S.M.K. and R.R.R., Parents. A06-1493, Court of Appeals Unpublished, January 23, 2007.

This opinion will be unpublished and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

A06-1493

 

In the Matter of the Welfare of the Children of:
S.M.K. and R.R.R., Parents.

 

Filed January 23, 2007

Affirmed

Peterson, Judge

 

Stearns County District Court

File No. J4-06-50423/J2-06-50422

 

Andrew R. Pearson, 1505 Division Street, Waite Park, MN  56387 (for appellant S.M.K.)

 

Janelle P. Kendall, Stearns County Attorney, Jodi D. Copenhaver-Liukkonen, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent)

 

Brian Ansberry, 725 Courthouse Square, St. Cloud, MN  56303 (guardian ad litem)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order terminating her parental rights, appellant-mother argues that the record does not support the district court's determinations that she is palpably unfit, that she has refused to comply with the duties of the parent-child relationship, and that termination of her parental rights is in the child's best interests.  We affirm.

FACTS

            Appellant-mother S.M.K. and father R.R.R., who divorced in 2002, have three children, B.R., born in 1992, B.A.R., born in 1994, and N.A.M.R, born in 1995.  Several incidents of sexual contact among the children occurred from 1999 to 2004.  During this period, B.R. victimized both B.A.R. and N.A.M.R., and B.A.R. victimized N.A.M.R.  At some point, mother became aware of the abuse by B.R. against B.A.R. and placed B.R. at father's home.  But mother continued to send B.A.R. and N.A.M.R. to father's home for visitation, and in July 2004, during a visit at father's home, B.R. raped N.A.M.R. 

            Mother has a history of mental-health and emotional issues, which include cutting herself, depression, being involved in unstable or abusive relationships, and alcohol abuse.  While mother was living with a woman and the woman's son, K.O., who is a registered juvenile sex offender, mother allowed K.O. to engage in physical play with B.A.R. and N.A.M.R. and allowed K.O. to babysit N.A.M.R. 

            In November 2004, B.A.R. and N.A.M.R. were adjudicated children in need of protection or services under Minn. Stat. § 260C.007 (2004), and in April 2005, they were placed out of the home.  Mother and father voluntarily terminated their parental rights to B.R.  In March 2006, Stearns County Human Services filed petitions to terminate mother's and father's parental rights to B.A.R. and N.A.M.R., alleging neglect of parental duties under Minn. Stat. § 260C.301, subd. 1(b)(2) (2004), palpable unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), and failure to correct the conditions that led to out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5) (2004).  Following a trial, the district court issued two orders, one terminating mother's and father's parental rights to B.A.R. and the other terminating their rights to N.A.M.R. based on neglect of parental duties and palpable unfitness.  This appeal followed. 

D E C I S I O N

            Mother appealed both termination orders, but in her brief she states that the focus of this appeal involves the termination of her parental rights to N.A.M.R.  Mother does not state that she has abandoned her appeal of the termination order regarding B.A.R.  However, the district court found that "[N.A.M.R. and B.A.R.] cannot live together in the same home safely.  [N.A.M.R.] is at high risk of sexual abuse by [B.A.R.]."  The district court also found that "[t]he conditions leading to [N.A.M.R.'s] out-of-home placement have been corrected.  [Mother's] home is safe from sexual abuse by [B.A.R.] and [B.R.] because they are not present and will not be returning home."  Mother does not contest these findings, and she apparently concedes that N.A.M.R. and B.A.R. cannot live together.  But she does not explain how she will care for N.A.M.R. and B.A.R. if she retains her parental rights to both children and they cannot safely live in the same home.  Furthermore, mother's claim that N.A.M.R. could return to a household free from any threats of sexual abuse appears to be based on the assumption that B.A.R. will not be in the home.  Consequently, it is not clear whether mother is continuing to challenge the termination of her rights to B.A.R.  Because it is not clear that mother has abandoned her appeal of either termination order, we will assume that she has not abandoned either appeal.

            Statutory Grounds for Termination

            Mother argues that the district court's findings do not support its determinations that she is palpably unfit to be a party to the parent-and-child relationship and that she refused or neglected to comply with parental duties.  Parental rights may only be terminated "for grave and weighty reasons."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  A reviewing court "exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  "Termination of parental rights will be affirmed as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child's best interests."  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); seeMinn. Stat. § 260C.301, subd. 1(b) (2004) (providing grounds for termination of parental rights); Minn. Stat. § 260C.301, subd. 7 (2004) (providing that best interests of child is paramount consideration).  The district court need only find that one of the statutory conditions exists to terminate parental rights.  In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985). 

            On appeal from an order terminating 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) (citing M.D.O., 462 N.W.2d at 374-75).  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).  But we "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).           

            Parental rights may be terminated upon a showing

that 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.

 

Minn. Stat. § 260C.301, subd. 1(b)(4).  Before terminating parental rights, the district court must ensure that reasonable efforts have been made by the appropriate agency to reunite the child with the child's parents.  Minn. Stat. § 260C.001, subd. 3(1) (Supp. 2005); see Minn. Stat. § 260.012(f), (h) (Supp. 2005) (providing that reasonable efforts means due diligence in using appropriate and available services and stating courts must consider whether services were relevant, adequate, culturally appropriate, available, accessible, consistent, timely, and realistic).      

            Mother argues that the district court's finding that she "essentially forced [B.A.R.] to have contact with his abuser by making him stay in the same home as the abuser" ignores the fact that mother asked the authorities to remove B.R. from the home after an earlier incident of inappropriate sexual behavior, and when this request was denied, she asked for county services to help her deal with B.R.'s behavior.  Mother contends that because of the visitation schedule established in the parents' dissolution, she had no choice but to allow the children to go to father's home, that she told father to watch the children so that no more sexual abuse occurred, and that to terminate her parental rights based on an incident that occurred in father's home is unfounded.  Mother also contends that this finding does not take into consideration the district court's finding that N.A.M.R.  is now safe from sexual abuse in mother's home because B.R. and B.A.R. are not present and will not be returning to the home.

            But mother does not claim that any of the district court's findings are clearly erroneous.  Although mother disagrees with the finding that she "essentially forced" B.A.R. to stay at father's home with B.R., the finding is supported by mother's testimony that she continued to allow B.A.R. and N.A.M.R. to stay at their father's home with B.R. after she knew that B.R. had exhibited sexually inappropriate behavior.  Also, the fact that the district court found that N.A.M.R. is now safe from sexual abuse by B.R. and B.A.R. in mother's home does not render the district court's findings regarding mother's past behavior erroneous.

            The district court determined that mother and father are palpably unfit to parent N.A.M.R.

because of their lack of understanding of how to protect [N.A.M.R.]; their continued pattern of placing her in close proximity to abusers; their lack of a reliable safety plan; and their continued pattern of placing [N.A.M.R.] in high risk situations.  The fact that the known abusers have been removed from the household does [not] mean that [mother] and [father] have learned the parenting skills to protect [N.A.M.R.].  It only means that the specific individuals are no longer a threat. 

 

The district court determined that although mother and father used the services provided by the county and complied with requests made by the county and the court, mother and father "still do not have the ability to keep [N.A.M.R.] physically, emotionally, and mentally safe." 

            With respect to B.A.R., the district court found that

[B.A.R.] is not likely to be a victim of sexual aggression again by his brother [B.R.] because [mother] and [father] voluntarily terminated parental rights to [B.R.].  In that sense, [B.A.R.'s] emotional and physical safety has been ensured.  But [B.A.R.'s] emotional and physical safety also requires that he not be the perpetrator of sexual aggression.  Neither parent has developed an effective and reliable safety plan to protect [B.A.R.] from harming another child.  Their stated plans constant supervision and separate bedrooms have failed in the past.  [Father] plans to install interior locks on the bedroom doors, and maintain bedrooms on separate floors if necessary.  These plans still require constant supervision, an area where both [mother] and [father] have failed time and again in the past.  The court is not convinced that either parent has the ability to provide intense supervision that [B.A.R.] needs, and there is no evidence that they will be successful in learning the necessary skills to do so.

 

            These findings describe a consistent pattern of mother and father placing N.A.M.R. and B.A.R. in circumstances where they are vulnerable to becoming either a victim or a perpetrator of sexual abuse and failing to provide the supervision needed to prevent abuse.  They also indicate that this pattern will continue for the reasonably foreseeable future.

            Mother argues that in concluding that she is palpably unfit to parent, the district court improperly relied on its finding that she "made other poor choices in providing for the safety and well-being of her children, including . . . letting [B.A.R.] and [N.A.M.R.] engage in physical play with [K.O.]. . . . She also allowed [K.O.] to babysit [N.A.M.R.]."  Mother contends that there is no evidence that her children's contact with K.O. resulted in any inappropriate sexual activity involving N.A.M.R. and that because she no longer has any relationship with K.O.'s mother, K.O. no longer has any contact with her children.  

            Mother correctly argues that the district court must base its decision on the circumstances existing at the time of the hearing.  See In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (stating evidence offered in support of termination-of-parental-rights petition must address conditions existing at time of hearing).  "When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child."  S.Z., 547 N.W.2d at 893 (quotations omitted).  It must appear likely that the conditions leading to termination will continue for an indefinite and prolonged period.   P.R.L., 622 N.W.2d at 543. 

            But although the evidence must address current conditions, this does not mean that the parents' past conduct is irrelevant.  See Minn. Stat. 260C.301, subd. 1(b)(4) (providing that in determining whether parent is palpably unfit, court considers duration and nature of pattern of conduct or conditions).    To determine a parent's ability to parent a child, the district court must consider current conditions in the context of the history and patterns of the parent's conduct.  See S.Z., 547 N.W.2d at 893-94 (discussing father's history of mental illness as it relates to current and future ability to parent).  Thus, the district court properly considered mother's history of poor choices in determining her current and future ability to parent N.A.M.R.  And although there is no evidence that any inappropriate sexual activity occurred between K.O. and N.A.M.R., allowing her children to engage in physical play with a registered sex offender and allowing that offender to babysit N.A.M.R. were poor choices that endangered the children.  The district court properly relied on its finding that mother made "poor choices in providing for the safety and well-being of her children" when determining that mother is palpably unfit.

            Mother argues that her mental-health and emotional issues are not a basis for termination.  The district court found that mother's "parenting skills have been called into question because of her own mental/emotional issues.  She has a history of cutting, depression, abusive and/or unstable relationships, and alcohol abuse."  Mother contends that depression is not the type of major mental illness that warrants a finding of palpable unfitness.  But the district court did not determine that mother is palpably unfit simply because mother suffers from depression.  The district court found that although mother has taken steps to address her mental-health/emotional issues, the issues are not resolved, and they affect the children.  The court found that "[B.A.R.] and [N.A.M.R.] sometimes step into the parenting role by initiating contact and conversation" and "[i]t is a grave concern to the court that [N.A.M.R.] will refrain from reporting abuse because she is worried about [mother] cutting or harming herself."  Mother contends that the district court's concern that N.A.M.R. will refrain from reporting any future abuse to mother out of fear that mother will cut herself is not, in and of itself, a basis for termination.  But mother does not dispute that N.A.M.R. has stated that she will not tell her mother if she is sexually abused again because when she tells her mother, her mother cuts herself.  The district court's concern that N.A.M.R. will refrain from reporting abuse because she is worried that mother will harm herself supports the district's court's determination that mother "[does] not have the ability to keep [N.A.M.R.] physically, emotionally, and mentally safe." 

            Mother argues that because, after the first sexual assault, no further sexual assault occurred while the children were in her care, the district court's findings that both parents "have a long, documented history of failing to protect [N.A.M.R.] from abuse and placing her in situations where she is at risk (either from her brothers or from other people living in the household)," and that "[n]either parent has been able to implement a successful safety plan," do not apply to her.  But, although mother disclaims any responsibility for N.A.M.R.'s victimization at father's home, mother admitted during her testimony at trial that N.A.M.R. was assaulted even though mother had a safety plan in place.  Therefore, the finding that both parents failed to protect N.A.M.R. applies to mother.

            Mother also argues that the district court's finding that "[p]lacing [N.A.M.R.] in close proximity to her abusers constitutes ongoing abuse" unfairly characterized mother's attempts to get assistance.  Mother contends that she attempted to get B.R. removed from the home and argues that until the authorities responded, she "had no choice but to try to do her best with the assistance she received" from the county.  But the district court's finding is supported by a report in which a licensed psychologist and a clinical social worker who interviewed mother wrote:

[Mother] acknowledges that [B.R.] sexually abused [N.A.M.R.] and [B.A.R.], but she let them "stay over" at their father's home with [B.R.], who had previously sexually abused them, but only with the understanding that he would be under the direct supervision of the father.  One does not get the distinct impression, however, that this was in any way an appropriate arrangement.  Even though there may have been supervision, being in proximity to a sexual perpetrator for victims with this profile constitutes ongoing abuse.

 

            Citing In re Welfare of S.N., 423 N.W.2d 83, 90-91 (Minn. App. 1988) (determining district court's findings regarding unfitness based on mental illness were insufficient to justify termination of parental rights absent finding or evidence of specific parenting disability), mother argues that the district court did not identify a specific parenting deficiency that supports termination.  But the district court specifically identified mother's inability to keep N.A.M.R. "physically, emotionally, and mentally safe" as the parenting deficiency that makes mother palpably unfit to parent N.A.M.R. and mother's inability to provide the intense supervision that B.A.R. needs as the parenting deficiency that makes mother palpably unfit to parent B.A.R.  The district court's findings with respect to these deficiencies are supported by the record.

            The district court's findings address the criteria for determining whether a parent is palpably unfit to be a party to the parent-and-child relationship, the findings are supported by clear and convincing evidence, they are not clearly erroneous, and they support the district court's determination that mother is palpably unfit to parent B.A.R. and N.A.M.R.  Because it is only necessary for the district court to find that one of the statutory grounds exists to terminate parental rights, it is not necessary for us to address the district court's determination that mother refused or neglected to comply with the duties imposed upon her by the parent-and-child relationship.

            Best Interests of Child

            Mother argues that in light of the guardian ad litem's recommendation that N.A.M.R. should be with her mother, it was not in N.A.M.R.'s best interests that parental rights be terminated.  Mother does not argue that the district court erred in determining that termination of parental rights is in B.A.R.'s best interests.  In any proceeding to terminate parental rights "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C.301, subd. 7.  The district court may not terminate parental rights unless it is in the child's best interests, even if other statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by J.M., 574 N.W.2d at 723-24.  But because parental rights are not absolute, they should not be enforced to the detriment of a child's welfare and happiness.  In re Welfare of Child of P.T. & A.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  Evaluating a child's best interests in termination proceedings requires the district court to balance the child's interests in preserving a parent-child relationship, the parent's interests in preserving a 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).  A child's competing interests include health needs and the interest in a stable environment.  Id.

           

The guardian ad litem testified:

            I have some concerns about [N.A.M.R.] returning with [mother].  Some of those concerns are the stability of the home.  My concerns are whether or not that home is a stable environment.  There is no guarantees that the relationship between [boyfriend] and [mother] will continue over time.

            In looking at, you know, future behavior, history is usually the best predictor, but it's not the only predictor.  I know [mother] has done a lot of work in trying to address her living situation.  She has, by all appearances, followed what the case plan was, and yet at the same time I see that there is a real strong bond between [mother] and [N.A.M.R.].  I think [mother] has acknowledged that she has made some mistakes.  [Mother] has done what she can to acquire adequate and safe housing, and from all reports it is . . . adequate and safe.

            So with all of that, even with my reservations I know that [N.A.M.R.] is doing very well right now, she seems to be flourishing where she's at, and yet at the same time I strongly believe that [N.A.M.R.] should be with her mother and to be returned home. 

 

            The district court did not follow the guardian ad litem's recommendation.  But the district court found that while N.A.M.R. has a bond with mother, and mother is interested in parenting N.A.M.R., mother lacks the skills needed to protect N.A.M.R. from abuse, N.A.M.R. is unlikely to report abuse to mother out of fear that mother will cut or otherwise harm herself, which makes N.A.M.R. even more vulnerable, and mother has placed N.A.M.R. in situations where she has close contact with her previous abusers.  These findings are supported by clear and convincing evidence and are not clearly erroneous, and they support the district court's determination that termination is in N.A.M.R.'s best interests.  In light of the deference that is due to the district court on appeal, there is no basis for us to disturb the district court's decision.

            Affirmed.   

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