In the Matter of the Welfare of the Child of: D.A.B. and W.M.W., Parents.

In the Matter of the Welfare of the Child of: D.A.B. and W.M.W., Parents. A06-1876, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and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

A06-1876

 

In the Matter of the Welfare of the Child of: D.A.B. and W.M.W., Parents.

 

Filed April 17, 2007

Affirmed

Peterson, Judge

 

Anoka County District Court

File No. J6-05-51943

 

David C. Gapen, Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN  55402 (for appellant-mother D.A.B.)

 

Robert M.A. Johnson, Anoka County Attorney, Kristin Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN  55303 (for respondent Anoka County Social Services)

 

Teisha Orduno, 8014 Olson Memorial Highway, Internal PM Box 113, Golden Valley, MN  55427 (guardian ad litem)

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, 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 lacks clear and convincing evidence that (1) any of the alleged statutory bases for termination exists and (2) termination of her parental rights is in the best interests of the child.  We affirm.

FACTS

            S.J.W. was born November 2, 1998.  S.J.W. was placed in protective custody on February 10, 2005, after the Anoka-Hennepin Drug Task Force executed a search warrant at a home and found appellant-mother D.A.B. and S.J.W. sleeping on the floor.  During the search, police found methamphetamine and drug paraphernalia within access of the three children who were in the home.  Police found a digital scale and a small baggie of methamphetamine in mother's purse.  Before the search, respondent Anoka County Social Services had received two neglect referrals regarding S.J.W.

            When S.J.W. was placed in protective custody, her hair was dirty and matted, she had a rotting front tooth, there were dark circles under her eyes, and she was noted to be very small for a six-year-old.  S.J.W. told social workers that her father and mother share methamphetamine.  A doctor later determined that S.J.W. was malnourished.  By March 14, 2005, S.J.W. had gained three pounds.  On May 6, 2005, S.J.W. had oral surgery; four teeth were removed, and five teeth were capped.   

            The county filed a petition seeking a determination that S.J.W. is a child in need of protection or services, and after a hearing on February 15, 2005, the district court adjudicated S.J.W. a child in need of protection or services, ordered continued foster-care placement, appointed a guardian ad litem (GAL), and set August 10, 2005, as the permanent-placement-determination-hearing deadline.  The court also approved an interim case plan for mother, which (1) granted mother supervised visitation with S.J.W.; (2) required mother to complete a chemical-dependency evaluation and abstain from using alcohol and mood-altering chemicals; and (3) ordered mother to inform social services about any new address within 24 hours of moving and to submit to random urinalysis (UA) and breathalyzer testing.  Mother completed a chemical-dependency evaluation on February 17, 2005, and the assessor found that mother met the criteria for chemical abuse.  The assessor recommended intensive outpatient treatment and that mother (1) refrain from using alcohol and illicit drugs, (2) follow the social-services-case-plan requirements, (3) call in daily and complete random UA tests as directed, (4) complete outpatient treatment and follow aftercare recommendations, and (5) attend Alcoholics Anonymous or Narcotics Anonymous meetings and obtain a female sponsor. 

            In a March 7, 2005 report, social worker Amy Pisula stated that mother had not complied with her UA testing requirements and that a February 25, 2005 UA test was positive for methamphetamine.  Pisula also stated that social services had not been able to contact mother at the place where she claimed to reside and between February 10 and March 7, 2005, mother had visited S.J.W. only once. 

            In a March 31, 2005 order, the district court approved and ordered a case plan that required mother to avoid illegal activities and attend S.J.W.'s school meetings and medical appointments and work toward (1) obtaining stable housing and a verifiable stable income and (2) paying off her vehicle tickets and reinstating her driver's license. The court also ordered mother to undergo psychological evaluations and follow all recommendations. 

            In a May 25, 2005 report, Pisula stated that mother was not fully participating in any aspect of her case plan.  Pisula reported that mother had not informed Pisula where she was living and had not completed any of her required UA tests from March 10 to April 26, 2005.  On April 26, 2005, mother entered chemical-dependency treatment, but she was discharged on May 6, 2005, and had not completed any UA tests since her discharge.  Because mother had not completed her UA tests, she had no visitation with S.J.W. from March 17, 2005, until May 8, 2005.  During the three months before May 25, 2005, mother saw S.J.W. only during a May 8 visit and during S.J.W.'s dental surgery.

            In a June 24, 2005 order, the district court approved and ordered a case plan that added to mother's earlier case plan the requirements that mother should participate in and successfully complete domestic-abuse counseling and that mother must have clean UA tests in order for visits with S.J.W. to continue.  On July 6, 2005, mother submitted to her first UA test since March 9, 2005.  The sample that mother submitted for the test was diluted to the point that the lab suggested that the sample might not be urine and mother should be screened again. 

            Mother entered chemical-dependency treatment at Fairview Recovery Services on July 8, 2005, and was successfully discharged on July 27, 2005.  On August 2, 2005, mother entered Wayside halfway house, but she was discharged the next day for failing to follow rules. 

            On August 3, 2005, the county filed a petition to terminate mother's parental rights.  The petition alleged that (1) mother is palpably unfit to be a party to the parent-and-child relationship; (2) following S.J.W.'s placement out of the home, reasonable efforts under the direction of the court failed to correct the conditions leading to the placement; and (3) S.J.W. is neglected and in foster care.  The petition sought termination of mother's parental rights under Minn. Stat. § 260C.301, subd., 1(b)4, 5, 8 (2004).

            Following a review hearing on the petition on August 4, 2005, mother was arrested on an outstanding warrant.  She submitted to a UA test in jail on August 4, which indicated that the sample was elevated for amphetamine and severely diluted.  Mother was released from jail on August 25, 2005.  In a September 12, 2005 order, the district court approved and ordered a case plan that added to mother's previous case plan the requirements that mother follow all recommendations made by halfway-house placement, participate in domestic-abuse groups approved by social services, and attend visits with S.J.W. as approved and recommended by social services.   

            Mother entered Transformation House (a halfway-house placement) on September 13, 2005.  She was discharged from Transformation House on December 12, 2005.  The discharge summary stated that mother appeared willing to do what she needed to do to satisfy her child-protection worker's requirements to get her daughter back and that random UA tests showed that mother had remained clean and sober.  However, the summary also stated that mother "appeared not ready to accept her using behaviors that resulted in having her daughter removed from her care," "learned limited ways and tools to change her life and abstain from her drugs of choice," and "was limited on recognizing her relapse triggers and prevention strategies." 

            The discharge summary also stated that mother's prognosis was good, if she followed aftercare recommendations.  The recommendations included that mother move into transitional housing for additional support and to develop the skills needed to remain abstinent, but the summary stated that mother refused and appeared to have not considered transitional housing.  Against staff recommendations, mother looked into getting an apartment of her own and then decided to stay with her father, who has a history of chronic alcohol abuse.    

            In January 2006, an Anoka County social worker reported that on December 31, 2005, she was introduced to mother at a bar, and mother appeared to be drunk.  After first denying the report, mother admitted that she had been drinking and said that it was her first relapse. Also in January 2006, mother enrolled in a domestic-abuse group, but she was terminated from the group in February for missing too many sessions.  Mother again enrolled in the domestic-abuse group on May 3, 2006, the day before the hearing on the termination petition. 

            In a February 8, 2006 order, the district court ordered mother to complete a parenting assessment, waived the termination-trial deadline, and continued the permanency-placement-determination hearing to March 16, 2006.  Carol Starr Carpenter completed a parenting-capacity assessment of mother.  Carpenter reviewed the social services file and met with mother for approximately two hours.  Carpenter found that mother did not place her child's needs before her own, is unable to empathize and show concern for S.J.W., and does not understand the negative effects of her drug use on her child.  Carpenter stated that the prognosis for reunification was very poor and noted that mother described no health or emotional problems for S.J.W. and believed that S.J.W. is developing normally.  Carpenter found that mother's mental-health symptoms place her at greater risk for relapse or self-medicating.   

            Mother participated in a psychological evaluation administered by Bonnie Norsted.  Norsted diagnosed mother as suffering from major depressive disorder, methamphetamine addiction, and anti-social features.  Mother made limited progress in therapy due in part to her loss of insurance.  Her last session was on January 25, 2006, after six weeks of cancellations.  Norsted noted that she has

serious concerns about [mother's] ability to be an effective parent.  [Mother] has difficulty understanding her child's needs and tends to focus on what [mother] wants.  Her oppositional traits and drug dependence are also a major factor in her ability to truly be there for her children.  If [mother] was to regain custody of her daughter and the court system was no longer involved it would be likely that [mother] would resume her old behaviors.

 

Norsted also had serious concerns about reunification because mother seemed resistant to treating her depression and anxiety.  Norsted stated that mother's sobriety was questionable because "she has difficulty identifying treatment goals other than to find housing.  (Not mentioning her daughter's needs)." 

            S.J.W. began counseling sessions with Katie Susens on June 13, 2005.  Susens recommended a neurological evaluation because she was concerned about the level of neglect S.J.W. suffered and her exposure to drug use.  After a comprehensive diagnostic evaluation in July 2005, Dr. Cindy Johnson diagnosed S.J.W. as suffering from reactive attachment disorder (RAD), due in part from the extreme neglect she suffered while in mother's custody.  In her report, Johnson described S.J.W. as displaying the disinhibited type of RAD, which is indicated by "indiscriminate sociability or lack of selectivity in the choice of attachment figures that can be demonstrated by showing excessive familiarity with relative strangers, such as making inappropriate requests and displaying affection." 

            At the May 9, 2006 trial on the termination petition, Norsted testified that mother made little progress in therapy.  Mother avoided dealing with issues such as her own anxiety and depression and being a better parent and would only focus on concrete issues such as obtaining a job and housing.  Norsted stated that by the time therapy with mother ended in January 2006, mother had made no progress toward being an effective parent of a child with RAD. 

            Mother began seeing another therapist, Seema Kamath, on April 1, 2006.  Kamath testified at trial that she diagnosed mother with adjustment disorder with mixed depression and anxiety.  Kamath testified that mother has not yet taken responsibility for her drug use.  Kamath did not have an opinion regarding mother's ability to parent S.J.W.

            Johnson testified that she diagnosed S.J.W. with RAD and explained that RAD occurs in children whose early care has been pathological in some sense, possibly through neglect or physical or sexual abuse, and where the child's emotional and physical needs were not consistently met.  Johnson's summary of the diagnostic evaluation, which was accepted into evidence, indicated that S.J.W. had difficulty identifying the individuals who comprised her family.  S.J.W. also demonstrated difficulty with impulse control and appeared to avoid thinking about her biological family because doing so likely increased her anxiety.  Johnson believed that if S.J.W. does not receive treatment, her outlook is not good.  Johnson recommended that S.J.W.'s progress be closely monitored "as she is at risk to develop behavioral, emotional or learning problems as she gets older."     

            The GAL testified that (1) it is in S.J.W.'s best interests that mother's parental rights be terminated;  (2) mother's compliance with her case plan has been inconsistent; (3) mother had not made enough progress on her case plan and her own therapy to be able to help S.J.W. with her RAD diagnosis, which would require extensive therapy;  and (4) mother had completed chemical-dependency treatment, but the GAL was concerned about mother's sobriety given her missed UA tests, her relapse with alcohol use on December 31, 2005, and her decision to live with her alcoholic father. 

            Pisula testified that (1) mother missed UA tests in January, February, and March 2006 and did not appear to be motivated to comply with her case plan until the termination petition was filed;  (2) mother refused to follow the requirement that she obtain safe, sober, transitional housing, and instead went to live with her alcoholic father, which Pisula did not consider to be the good, stable, housing arrangement necessary for S.J.W.'s well being;  (3) mother cannot provide the stability and consistency that S.J.W. needs in her life;  and (4) S.J.W. has thrived and blossomed in foster care and is a different little girl than when she went into foster care. 

            The court found that mother is not capable of parenting a child with the needs associated with RAD because she does not understand S.J.W.'s needs, and concluded that termination of mother's parental rights was appropriate and in S.J.W.'s best interests.  This appeal followed.

D E C I S I O N

            Mother argues that the county failed to prove by clear and convincing evidence that her parental rights should be terminated under any of the statutory bases asserted in the petition.  There must be clear and convincing evidence that at least one of the statutory bases for termination exists.  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 criteria).  "[T]he evidence must address conditions that exist at the time of the 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."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations and citation omitted). 

            District courts must make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  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).  "Considerable 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).

            The district court determined that clear and convincing evidence existed to terminate mother's parental rights under the three statutory bases alleged in the petition: (1) mother is palpably unfit to be a party to the parent child relationship under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004); (2) following S.J.W.'s out-of-home placement, reasonable efforts had failed to correct the conditions leading to the child's placement under Minn. Stat. § 260C.301, subd. 1(b)(5); and (3) S.J.W. is neglected and is in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8).  Proof of one statutory basis is sufficient, and in any termination proceeding, the best interests of the child must be the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2004).

            Under Minn. Stat. § 260C.301, subd. 1(b)(5), the district court may terminate all rights of a parent to a child if the court finds "that following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement."  Under the statute,

[i]t is presumed that reasonable efforts [to correct the conditions leading to the placement] have failed upon a showing that:

            (i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months. . . . ;

            (ii) the court has approved the out-of-home placement plan . . . ;

            (iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan; and

            (iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family. 

 

Minn. Stat § 260C.301, subd. 1(b)(5)(i)-(iv).

            At the time of trial in May 2006, S.J.W. had resided outside the parental home under court order since February 2005, and the court had approved the out-of-home placement plan.  The district court found that the county had made reasonable efforts to offer mother services to assist in correcting the conditions that led to the out-of-home placement. 

            Mother does not dispute that the record establishes the first, second, and fourth elements of the statutory presumption that reasonable efforts have failed to correct the conditions leading to the out-of-home placement.  But mother argues that the conditions leading to the out-of-home placement were her use of methamphetamine, her lack of a job, and her unstable housing, and because the evidence shows that these conditions were corrected, the district court erred in concluding that the conditions leading to the out-of-home placement had not been corrected. 

            We agree that the record demonstrates that mother cooperated with the county in some respects and that she made progress toward completing some of her case-plan goals.  But under Minn. Stat § 260C.301, subd. 1(b)(5)(iii), "[i]t is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent . . . [has] not substantially complied with the court's orders and a reasonable case plan."  Although mother completed some case-plan goals, clear and convincing evidence showed that mother had not substantially complied with the district court's orders and a reasonable case plan.

            Among other things, the district court's orders and mother's case plan required mother to (1) inform social services about any new address within 24 hours of moving, (2) abstain from using alcohol and mood-altering chemicals, (3) submit to random UA and breathalyzer testing, (4) participate in and successfully complete domestic-abuse counseling, and (5) follow all recommendations made by halfway-house placement.

            Mother's social worker reported that mother had not kept her informed about where mother was living and that social services had not been able to contact mother at the place where she claimed to reside.  Also, mother failed to comply with the requirement that she submit to random UA testing.  Mother did not complete any of the required UA tests from March 10 to April 26, 2005.  The sample that mother submitted for her July 6, 2005 UA test was diluted to the point that the lab suggested that the sample was not urine.  Mother missed her required UA test on December 13, 2005, and failed to show up for her rescheduled test the next day.  A March 8, 2006 report indicated that mother missed UA tests on January 9, 17, 27, and 30, 2006.  In February 2006, mother missed UA tests on the 8th and 13th.

            In addition to missing several UA tests, mother also failed several tests, which indicates that mother did not abstain from using alcohol and mood-altering chemicals.  On February 25, 2005, mother's UA test was positive for methamphetamine.  When mother entered Wayside halfway house on August 2, 2005, she tested positive for THC.  A sample that mother submitted for a UA test on August 4, 2005, was elevated for amphetamine and was severely diluted.  The samples that mother submitted for testing on September 7, 19, and 30 all appeared clean, but the September 7 sample was severely diluted.  Mother had only one clean UA test in February 2006.  Mother also admitted consuming alcohol at a bar on December 31, 2005.

            Mother was also ordered to successfully complete domestic-abuse counseling, and although she enrolled in a counseling program in January 2006, she was terminated from the program in February for missing too many sessions, and she did not enroll in the program again until the day before the termination trial began.

            Finally, mother was successfully discharged from a chemical-dependency treatment program and entered a halfway-house program.  But she was discharged from the halfway-house program the next day for failing to follow rules.  She later completed another halfway-house program, and her prognosis upon discharge was good, if she followed aftercare recommendations.  However, instead of following the recommendation that she move into transitional housing for additional support, mother decided to stay with her father, in spite of his history of chronic alcohol abuse.  By staying with her father, mother failed to comply with the requirement that she follow all recommendations made by halfway-house placement.

            These violations of the requirements of mother's case plan are not simply technical violations; they are violations of requirements imposed to address the chemical-abuse problems that led to the neglect that prompted S.J.W.'s out-of-home placement.  The violations show that mother has not substantially complied with the court's orders and a reasonable case plan and establish the statutory presumption that the conditions leading to S.J.W's out-of-home placement have not been corrected.  The district court did not err in determining that this statutory basis for terminating mother's parental rights was proved by clear and convincing evidence.  Because it is only necessary to prove that one statutory basis for termination exists, we will not address the other bases that the district court also found were proved.

Best Interests

            The best-interests analysis in proceedings to terminate parental rights requires the district court to balance the child's interest in preserving the parent-child relationship, the parent's interest in preserving the 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).  "Competing interests include such things as a stable environment, health considerations and the child's preferences."  Id.  "Where the interests of parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7.

            The district court found that it is in S.J.W.'s best interests to terminate mother's parental rights.  The court found that "S.J.W. cannot wait any longer for permanency to be addressed" and that "S.J.W. needs a stable, loving home with parents who accept her RAD diagnosis and are willing to modify the manner in which they parent S.J.W. in order to help her overcome her attachment issues."  The court also found that S.J.W.'s interest in having a loving home with caregivers who are emotionally and psychologically equipped to deal with her RAD diagnosis and attachment issues outweighs any interest mother or S.J.W. has in continuing the parent child relationship.  The record supports these findings.

            Johnson's treatment recommendations indicate that S.J.W. would not be able to tolerate further disruption to her caregiver relationships.  Due to her special needs, S.J.W. needs a caregiver who will provide an emotionally and physically safe place for her to live and who will focus his or her time and attention on S.J.W.'s needs. 

            Susens met with mother in September 2005, after Johnson's diagnosis and assessment.  Mother claimed to never have seen the behavior described in Johnson's assessment report.  Susens indicated that mother had not read Johnson's report, so she went through the report with her and advised mother that S.J.W. would need stability, predictability, and permanence in her life.  Mother could not identify any goals in the area of her parenting, but claimed to have done everything necessary for reunification.  Susens also noted that mother "did not indicate any sense of accountability for any impact her choices made on [S.J.W.'s] life," and noted that she was concerned that because of mother's inability to see how she contributed to S.J.W.'s emotional needs, "[mother] will not be open to learning about how to do reparative parenting to address those needs." 

            The court's finding demonstrates that in determining whether to terminate mother's parental rights, the district court examined the relationship between mother and the child and weighed S.J.W.'s RAD diagnosis and her ability to overcome her attachment issues with mother's ability to be a parent and comprehend S.J.W.'s needs.  The record demonstrates that at the time of trial, mother had not made sufficient progress on her case plan to address her chemical-dependency issues and to be able to provide the care that S.J.W. needs.  There is clear and convincing evidence that terminating mother's parental rights is in S.J.W.'s best interests. 

            Affirmed.