In the Matter of the Welfare of the Child of: J.E.B. and R.D.B., Jr., Parents.

In the Matter of the Welfare of the Child of: J.E.B. and R.D.B., Jr., Parents. A06-1494, A06-1495, Court of Appeals Unpublished, February 6, 2007.

 This opinion will be unpublished and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

A06-1494

A06-1495

 

 

In the Matter of the Welfare of the Child of:

J.E.B. and R.D.B., Jr., Parents.

 

 

Filed February 6, 2007

Affirmed Willis, Judge

 

Stearns County District Court

File No. JX-05-51677

 

 

Andrew R. Pearson, 1505 Division Street, Waite Park, MN  56387 (for appellants J.E.B. and R.D.B., Jr.)

 

Janelle P. Kendall, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent County)

 

Shirley Lease, 725 Courthouse Square, St. Cloud, MN  56301 (guardian ad litem)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In these consolidated termination-of-parental-rights appeals, mother argues that (1) the petition to terminate her parental rights was untimely because it was filed after the permanency deadline, or, in the alternative, mother and the child's placement in full-family foster care suspended the running of the permanency deadline; (2) the district court erred by applying a presumption of palpable unfitness because the transfer of custody of two of mother's older children was voluntary and because the county failed to file the petition within the statutory time limitation after those transfers; (3) the record does not otherwise show mother to be unfit; (4) the district court overemphasized father's history of sexual abuse when addressing termination of mother's parental rights; and (5) the record does not show it to be in the child's best interests to terminate mother's parental rights.  Father argues that (1) because father was complying with the relevant portions of his case plan, he was not a palpably unfit parent; and (2) clear and convincing evidence does not support the district court's determination that conditions leading to the child's out-of-home placement had not been corrected.  We affirm. 

FACTS

                       

            Appellants J.E.B. (mother) and R.D.B., Jr. (father) are the parents of I.R.B. (the child), who was born September 18, 2004.   Mother also has four older children.  In January 2002, after a CHIPS petition was filed, the district court ordered that permanent custody of two of mother's older children be transferred to their maternal grandparents.  In August 2002, the district court also ordered the transfer of permanent custody of mother's other two older children to their maternal grandparents. 

            Father pleaded guilty in 1988 to one count each of second-degree and fourth-degree criminal sexual conduct involving a minor child.  While on probation for those offenses, he also pleaded guilty to second-degree criminal sexual conduct involving another minor child.  He was sentenced for the latter offense in 1996, and his probation for the earlier offenses was revoked.  At least twice while he was incarcerated, father began, but did not complete, sex-offender treatment programs.  When he was released from prison in 1998, father agreed to participate in the sex-offender treatment program at CORE Professional Services, P.A. and received a recommendation for adult sex-offender therapy.   Father did not complete that therapy; he testified that he "had a bad attitude back then." 

            Five days after the child's birth, Stearns County Human Services (SCHS) filed a  petition alleging that the child was in need of protection or services (CHIPS), and the child was then placed in foster care.   The district court adjudicated the child in need of protection or services in November 2004.  The district court found that mother admitted to receiving services from the county in the past and to "having custody of two of her children involuntarily transferred" to their maternal grandparents.   The court also found that father "admitted to being a convicted sex offender and that he never completed treatment."  

            In June 2005, the district court extended the deadline for the child's permanent-placement determination hearing to September 23, 2005, and placed mother and the child in full-family foster care.  The full-family foster-care provider lived in one house;  mother and the child lived in a nearby house with other staff members.  The provider stayed with mother and the child in the provider's house from about 8:15 a.m. to 5:30 p.m. each day.   Mother did household chores and worked on parenting skills under the provider's supervision.  Mother was allowed to be alone with the child for two-and-one-half hours per day.     

            Although mother and father were separated,  mother spent a weekend with father at an aftercare facility following his release from prison and continued to have telephone contact with him.  Mother requested that father be allowed to see the child on her birthday or to attend the child's birthday party during the full-family foster-care placement.  SCHS refused the request.          

            As part of the CHIPS disposition, father received a diagnostic assessment at CORE Professional Services.  He re-enrolled in sex-offender treatment in 2005 but again did not complete the treatment program.  Father, who has epilepsy and required organ-transplant surgery in 2006, testified that health issues required his withdrawal from the program.   But the program's clinical director also testified that father was difficult to work with and did not "commit to developing a healthy lifestyle."   

            SCHS filed a petition to terminate the parental rights of both mother and father in December 2005, alleging that the parents are palpably unfit; that reasonable efforts failed to correct the conditions leading to the child's out-of-home placement; and that a parent had been convicted of child abuse.  In January 2006, mother obtained an order for protection prohibiting father from having contact with the child.  She testified that she obtained the order "to demonstrate that [she was] concerned for [the child's] safety, and . . . mostly because the people were hounding me to do it." 

            The district court denied mother's motion to dismiss the petition as untimely.  At trial, the child-protection social worker testified that she had a "huge concern" about mother's relationship with father as a safety risk, as well as about mother's inability to show "consistent demonstration of basic parenting skills."  The social worker testified that there had been no indication that mother was able to live on her own with the child and that mother had stated she still had strong feelings for father.  The social worker also testified that father had expressed to her his intention to continue having contact with children. 

            The full-family foster-care provider and a staff member testified that they were  concerned about mother's ability to parent the child independently.  The care provider also testified that she believed that although mother loved the child, the care provider had concerns because mother wanted father to be a part of celebrations in the child's life.  The staff member testified that at times mother and father had exchanged phone calls at inappropriate times, such as late at night. 

            The guardian ad litem (GAL) testified that at no point in the placement did she believe that mother was ready to leave full-family foster care and be reunited with the child.  The GAL also testified that if reunification occurred, she would have concerns about the child's safety because she believed that mother would allow the child to have contact with father without proper supervision.   

            The district court found that (1) based on mother's involuntary custody transfer of two of her older children, a presumption of mother's palpable unfitness to parent the child exists; (2) the county did not waive that presumption by failing to file the petition within the time limit provided by statute after a determination that mother had previously involuntarily transferred custody of another child; (3) mother failed to rebut the presumption; (4) even if the presumption did not exist, the county proved mother's palpable unfitness "due to a specific condition directly relating to the parent and child relationship":  her inability to keep the child safe from father; (5) conditions leading to the out-of-home placement had not been corrected; and (6) the child's best interests supported termination of mother's parental rights.  As to father, the district court found that (1) the county sustained the burden of proving that he was palpably unfit to parent the child because he was an untreated sex offender; (2) conditions leading to the out-of-home placement had not been corrected because of father's failure to complete sex-offender treatment; and (3) the best-interests factors supported termination of father's parental rights.  The district court terminated the parental rights of both mother and father, both parents appealed, and this court consolidated the appeals. 

D E C I S I O N

            On appeal in a termination-of-parental-rights proceeding, this court determines "whether the district court's findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  Parental rights may be terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  For the district court to terminate parental rights, clear and convincing evidence must establish that at least one ground for statutory termination exists and that termination is in the best interests of the child.  In re Welfare of Children of R.W.,678 N.W.2d 49, 55 (Minn. 2004).

            Termination of parental rights is warranted when a parent is palpably unfit to be a party to the parent-child relationship, based on a consistent pattern of specific conduct before the child, or specific conditions relating directly to the parent-child relationship, that the court determines to be of a nature and duration that renders the parent unable, for the reasonably foreseeable future, to care for the child's ongoing needs.  Minn. Stat. § 260C.301, subd. 1(b)(4) (2004).  The district court terminated both mother's and father's parental rights on the ground that mother had failed to rebut the presumption of palpable unfitness, that both parents were palpably unfit, and that, following the child's out-of-home placement, reasonable efforts had failed to correct the conditions leading to the child's placement.  See Minn. Stat. §  260C.301, subd. 1(b)(5) (2004).  The district court also found that it was in the child's best interests to terminate the parental rights of both parents.

I.

 

            Mother contends that the district court erred by failing to dismiss the petition to terminate parental rights as untimely because it was not filed within the statutory deadline for commencing permanency proceedings.  See Minn. Stat. §  260C.201, subd. 11(a) (Supp. 2005) (stating that "[i]n . . . cases where the child is in foster care . . . the court shall commence proceedings to determine the permanent status of a child not later than 12 months after the child is placed in foster care").  The district court issued an order acknowledging that the petition was untimely because it was filed after the permanency deadline.  But the court declined to dismiss the petition, finding that the delay was unintentional and did not prejudice the parents. 

            We conclude that the district court did not err by failing to dismiss the petition.   The failure to commence the action within the time limit provided for by the statute is not a jurisdictional defect.  And Minn. R. Juv. Prot. P. 4.04 provides only that a court "may" impose sanctions against a party who willfully fails to follow timelines in a permanency action.  Further, the district court correctly observed that mother was not prejudiced by the delay because she received additional time to remedy the conditions that caused the county to seek termination of her parental rights.

            Mother alternatively argues that the termination petition was prematurely filed because the child's placement in full-family foster care did not constitute "foster care" within the meaning of the child-protection statutes.  See Minn. Stat. § 260C.201, subd. 11 (a)(1) (stating that "all time periods when a child is placed in foster care . . . are cumulated" in calculating the 12-month period for commencing a permanency proceeding).  "Foster care" is defined as "24 hour substitute care for children placed away from their parents or guardian and for whom a responsible social services agency has placement and care responsibility."  Minn. Stat. §  260C.007, subd. 18 (2004).

            Mother maintains that because she had two-and-one-half hours per day of unsupervised contact with the child during the full-family foster-care placement period, the child was not in "foster care" but was reunified with her.  But it is undisputed that SCHS retained legal custody of the child during the full-family foster-care placement.  See Minn. Stat. § 260C.007, subd. 22 (2004) (defining "legal custody" for child-protection purposes as "the right to the care, custody, and control of a child who has been taken from a parent by the court"); see also In re A.R.M., 611 N.W.2d 43, 48 (Minn. App. 2000) (stating that "legal custody" under chapter 260C "encompasses the core concepts" of "physical custody" as defined in chapter 518).  Although mother had limited unsupervised contact with the child during the full-family foster-care placement, SCHS retained full responsibility for the child and provided a plan for use in teaching mother living and parenting skills.  Therefore, we conclude that the time that the child spent in full-family foster care counts as "foster care" placement for purposes of calculating the time for initiating a permanency proceeding, and the petition was not premature.

II.

 

            A presumption of palpable unfitness to parent a child applies "upon a showing . . . that the parent's custodial rights to another child have been involuntarily transferred to a relative."  Minn. Stat. § 260C.301, subd. 1(b)(4).  Mother contends that the district court erred by applying a presumption of her palpable unfitness to parent the child based on the custody transfers of two of her other children to their maternal grandparents.  She alleges that her consent to the earlier transfers renders them voluntary, so they do not support the application of a presumption of palpable unfitness. 

            This court has "rejected a blanket rule that an admission to an involuntary TPR petition converts the petition into a voluntary petition."  In re Child of A.S., 698 N.W.2d 190, 195 (Minn. App. 2005) (citing In re Welfare of Child of W.L.P., 678 N.W.2d 703, 712 (Minn. App. 2004)), review denied (Minn. Sept. 20, 2005).  Rather, the record must be examined to determine whether it contains support for a conclusion that the transfer was voluntary and for good cause.  Id.  "Without clear evidence that an agreement relinquishing parental rights is voluntary and for good cause and is not merely an admission of ground for an involuntary placement, the presumption of palpable unfitness may not be avoided."  Id. at 196. 

            Mother argues that the custody transfers of two of her other children in August 2002 was voluntary because she stipulated to the transfers and did not admit the allegations in the county's petitions or acknowledge that the evidence supported involuntary transfers.  But the August 2002 custody-transfer orders specify that reasonable efforts for reunification over a period of time had failed because of mother's inability to meet the children's needs and provide for their safety.   The orders further gave mother two years to petition the court for custody by showing, by clear and convincing evidence, her capacity to parent.  Thus,  mother's stipulation to the custody transfers did not convert them into voluntary transfers.  See W.L.P., 678 N.W.2d at 712-13 (concluding that a stipulation to a settlement with the county in a termination-of-parental-rights proceeding did not convert the petition into a voluntary termination when the petition alleged grounds for involuntary termination and termination was stayed to allow the parent an opportunity to regain parental rights).  

            Mother also argues that, even if the custody transfers of her older children were involuntary, the district court erred by applying a presumption of palpable unfitness because the county attorney failed to file the petition to terminate parental rights within the time limitation provided for by statute after those transfers.  See Minn. Stat. § 260C.301, subd. 3 (2004) (stating that the county attorney "shall" file a petition within 30 days after a determination that another child of the parent is the subject of an order involuntarily transferring permanent custody to a relative, unless the county has filed a case plan "documenting a compelling reason why filing a termination of parental rights petition would not be in the best interests of the child").  The district court found that the petition was not filed within this statutory time limit and that the stated exception did not apply.  But the district court correctly determined that there is "no provision for waiver of the presumption of palpable unfitness where the county makes a procedural error."  And the court did not clearly err by finding that the county was aware of the custody transfers and that it benefited the parents that the county started a CHIPS petition first because it gave them a chance to use county services and demonstrate their ability to parent.  Thus, mother has failed to demonstrate how the delay in filing the petition prejudiced her, and the district court did not err in applying the presumption of palpable unfitness.  

III.

            Mother contends that the county failed to establish, by clear and convincing evidence, the existence of at least one statutory ground for terminating her parental rights.  She argues that she rebutted the presumption of palpable unfitness because the record shows that she had bonded with her child in full-family foster care and was making progress in parenting and life skills.  She further argues that father's history of sexual abuse was irrelevant to the issue of terminating her parental rights.  

            But we conclude that, even if the presumption of palpable unfitness did not apply to mother, substantial evidence supports the district court's determination that mother is palpably unfit to parent the child, based on the finding that mother is unable to protect the child from father and is "unable or unwilling to end contact with him until he has successfully completed treatment."  When mother was questioned about previous statements that she did not believe that father committed the actions leading to his sexual-assault convictions, she testified that she "[did not] see it happening."  The record shows that mother continued to have telephone contact with father during the full-family foster-care placement and tried to arrange for father to visit the child on the child's birthday.  Mother testified that she has no plans to divorce father and that after father completes treatment, she "would like him to be a part of [the child's] life."  The CHIPS social worker, the full-family foster-care provider, and the GAL all testified as to their concern about mother's inability to keep the child safe from father. 

            We also conclude that the record establishes, by clear and convincing evidence, the existence of another of the district court's grounds for terminating mother's parental rights: that conditions leading to the out-of-home placement had not been corrected.  See Minn. Stat. § 260C.301, subd. 1(b)(5)(iii).  Mother argues that "[t]he record is replete with evidence of . . . advances in her parenting skills and abilities."  But although the evidence shows that mother had made progress in full-family foster care, no social-services professional testified that mother could independently parent the child.  And the district court did not clearly err in finding that mother was "not able to protect [the child] from [father] and [was] unable or unwilling to end contact with him until he has successfully completed treatment."         

            Finally, mother challenges the district court's findings that the best-interests factors support termination of her parental rights.  In any termination-of-parental-rights proceeding, "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C.301, subd. 7 (2004).  In determining the best interests of the child, the court balances the child's interest in preserving the parent-child relationship, the parent's interest in preserving that 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 considerations such as a stable environment for the child and the child's health.  In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).

The district court found that mother's and the child's interests both supported continuing the parent-child relationship, but, in discussing the child's competing interests, found that mother's inability to provide for the child's safety was a "damaging concern."  We conclude that based on this record, the district did not clearly err in finding that mother's past behavior, which shows that she still wishes to have a relationship with father despite his failure to complete treatment, poses a "serious safety risk" to the child.  The district court appropriately weighed the best-interests factors in its decision to terminate mother's parental rights.

IV.

            Father maintains that the district court clearly erred in finding that the county had proved that (1) he was palpably unfit to parent the child and (2) the conditions leading to the out-of-home placement have not been corrected.  Father argues that he was attempting to address his issues as a sex offender by completing treatment; that his latest attempt to complete treatment failed only because of his health problems; and that he was in substantial compliance with the terms of his case plan because he was receiving Social Security disability income; he had adequate housing; and he had completed the court-ordered assessments and parenting classes. 

            We conclude that clear and convincing evidence supports the district court's determination that father was palpably unfit to parent the child.  The record establishes that father was convicted of criminal sexual conduct for offenses involving minors.  Father testified that he participated in sexual-offender treatment programs at least twice in prison, but did not complete the programs.  When he was released from prison, he volunteered for the CORE program but admitted that he did not complete the program because of his "bad attitude."  Although he reentered the CORE program in 2005, the clinical director of that program testified that father never committed to developing a healthy lifestyle and at times still had contact with children, despite a recommendation of  no contact.  Father's history of sexual assault of minors, along with his failure to complete sex-offender treatment, sufficiently supports the district court's finding that he was palpably unfit to parent the child.  See, e.g., In re Welfare of  S.R.A., 527 N.W.2d 835, 838  (Minn. App. 1995) (affirming district court's determination that a father with a history of chemical addiction and domestic abuse was palpably unfit), review denied (Minn. Mar. 29, 1995). 

            The district court also found, as another ground for terminating father's parental rights, that the conditions leading to the out-of-home placement have not been corrected.  We conclude that father's failure to complete sex-offender treatment or to take advantage of county referrals for further treatment is clear and convincing evidence that also supports this ground for termination.                    

            Affirmed.