In the Matter of the Welfare of the Children of R. E. R., Parent.

In the Matter of the Welfare of the Children of R. E. R., Parent. A06-2015, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and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

A06-2015

 

In the Matter of the Welfare of the Children of R. E. R., Parent

 

Filed May 8, 2007

Affirmed

Minge, Judge

 

Clay County District Court

File No. J0-06-50332, J2-06-50333

 

 

Brian J. Melton, Clay County Attorney, Michelle C. Winkis, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for appellant county)

 

Melinda Hanson Weerts, Melinda Weerts Law, PLLC, One North Second Street, Suite 120, P.O. Box 2310, Fargo, ND 58108-2310 (for respondent R.E.R.)

 

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant Clay County challenges the district court's dismissal of the county's petitions to terminate respondent's parental rights to two of her children arguing that the district court's findings are clearly erroneous.  Because the district court's findings are not clearly erroneous, we affirm.

FACTS

 

Respondent R.E.R. is the mother of three children: C.R. (born 5/22/94); A.G.R. (born 5/05/98); and T.M.R. (born 3/22/01).  Only A.G.R. and T.M.R. are subject to this termination-of-parental-rights appeal.  The fathers are not, and have never been, involved in the children's lives.

            Social services has been extensively involved in respondent's life since she was a young girl.   Respondent was placed into foster care at age two, adopted at age six, and placed in juvenile detention at age 13.  Thereafter, respondent lived in group homes and a foster home until she moved into her own apartment in 1993.  As a teenager, respondent was diagnosed with bipolar disorder and borderline-personality disorder.  These conditions persist.  Although respondent did not complete high school, she obtained her GED and participated in minimal secretarial training at Moorhead Technical College from 1995 to 1996.  She did not complete the program.  For most of her life, respondent has been unemployed and stayed at home with her children.  Respondent receives public assistance.    

            The circumstances leading to the county's petition to terminate respondent's parental rights consist of several events.  First, in June of 2003, the county received a child-protection report that respondent's son, C.R., had scratches from his throat to his belly button.  The subsequent investigation disclosed that after C.R. scratched his sister A.G.R., respondent scratched C.R. as a means of punishment.  C.R. suffers from seizure disorder and other developmental disabilities.  At the time of the incident, he was nine years old but functioned at a four-year-old level.  C.R. is currently in long-term foster care because of his mental-health condition.  Ultimately, respondent was charged with and pleaded guilty to malicious punishment.

            In August 2003, the county received a report that C.R. was unsupervised in a park several blocks from respondent's home.  C.R. had urinated in and soiled his pants and was knocking on doors asking for water.  Police escorted C.R. home and found A.G.R. and T.M.R., two and five at the time, playing outside of respondent's apartment unsupervised.  As a result of this incident, respondent was charged with and pleaded guilty to criminal neglect, and the county filed a CHIPS petition for the protection of C.R., A.G.R., and T.M.R.  Respondent admitted to the petition and the district court ordered protective supervision of respondent's three children.  Shortly thereafter, in October of 2003, a social worker reported that C.R. and T.M.R. were unsupervised in respondent's apartment building. 

            In June of 2005, A.G.R. was sexually abused in respondent's apartment hallway while she was unsupervised.  An adult touched A.G.R. in her genital area outside of her clothes.  Respondent testified that she was checking on A.G.R. consistently at the time.  Respondent reported the incident to the police and the assailant fled the state.  In July of 2005, the county documented another case of negligent supervision.  Finally, in September 2005, a county social worker reported that when she arrived for a visit, respondent's children were unsupervised in the same hallway where A.G.R. was abused. 

            In response to these incidents, T.M.R. and A.G.R. were placed in foster care on December 27, 2005.  Respondent did not contest the out-of-home placement.  The parties developed an out-of-home placement plan, which is described further below.  The plan was approved by the court.

            In June, appellant filed petitions to terminate respondent's parental rights to A.G.R. and T.M.R.  A trial was held and the district court dismissed the petitions.  This appeal follows.

D E C I S I O N

 

"There is perhaps no more grave matter that comes before the court than the termination of a parent's relationship with a child."  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).  Because of the interests at stake, "[w]e review terminations of parental rights to determine 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).  To determine whether the district court's findings are clearly erroneous, we give due consideration to the statutory requirement that the basis for termination of parental rights be proven by "clear and convincing evidence."  Minn. Stat. § 260C.317, subd. 1 (2004); see also In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996) (discussing the relationship between the standard of review used by this court and the level of proof required at the district court level).  The "clearly erroneous" component of our standard of review derives from Minn. R. Civ. P. 52.01, which precludes the setting aside of facts "unless clearly erroneous."  On review, we give "[c]onsiderable deference" to the district court's decision because the district court is in the best position to evaluate the credibility of witnesses.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). 

            The district court may terminate parental rights on the basis of one or more of the nine standards listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Satisfaction of one standard is sufficient.  "[T]he best interests of the child must be the paramount consideration, provided that the conditions in subdivision 1, clause (a), or at least one condition in subdivision 1, clause (b), are found by the court."  Minn. Stat. § 260C.301, subd. 7 (2004).

            Here, the county sought to terminate respondent's parental rights on four grounds, alleging that: (1) respondent has "substantially, continuously, or repeatedly refused or neglected to comply with" her parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (2) respondent is "palpably unfit" to act as a parent "because of a consistent pattern" of conduct indicating she will be unable to care appropriately for the needs of the child "for the reasonably foreseeable future," Minn. Stat. § 260C.301, subd. 1(b)(4); (3) "reasonable efforts" "have failed to correct the conditions" leading to out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (4) the children are "neglected and in foster care," Minn. Stat. § 260C.301, subd. 1(b)(8).  The district court concluded that the county did not meet its burden to show that termination was proper under any of these statutory standards.

            The county's challenge on appeal is unclear.  Instead of focusing on one or more of the four statutory standards and the district court's corresponding findings, the county broadly asserts that the district court erred in dismissing the termination petition because the district court's findings of fact were clearly erroneous.  The county then lists several subsidiary findings that it claims are clearly erroneous, but the county does not show how the corrected findings would have, or ought to have, altered the district court's ultimate findings.  The following analysis describes the four statutory standards and treats appellant's appeal as a challenge to the district court's four ultimate findings, incorporating appellant's specific objections where applicable. 

I.

The first issue is whether the district court's finding that respondent did not refuse or neglect to comply with her parental duties is clearly erroneous.  The district court may terminate parental rights if it finds that a parent has "substantially, continuously, or repeatedly refused or neglected to comply with [her parental duties] . . . and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable."  Minn. Stat. § 260C.301, subd. 1(b)(2).  The duties imposed on a parent include but are not limited to "providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child's physical, mental, or emotional health and development, if the parent is physically and financially able . . . ."  Id. 

            The district court concluded that because the county failed to show that respondent has refused or neglected to comply with her parental duties, termination was not proper.  The court reasoned:

In this case, there is no evidence that efforts of Social Services have failed.  [Respondent] has made significant improvements to her living conditions and has consistently worked with her service providers to deal with her parenting challenges and mental health issues.  [The family skills worker] concluded that [respondent] had made some progress in the areas of learning parenting skills, . . . implementing a routine, and supervision of the children.  Although [respondent] has more work to do, the Court finds that [respondent] is capable of caring for her children.

 

            The district court's finding is supported by evidence in the record and is not clearly erroneous. First, the record does not clearly indicate that respondent failed to provide "necessary food, clothing, shelter, [or] education," for her children, thereby neglecting her parental duties.  A county case worker testified:

Q.  And when you talk about neglect and chronic neglect in [respondent]'s case, does that relate primarily then to the supervision?

A.  Yes. To her ability to keep her children safe.

Q.  You don't mean neglect in the more classic sense, where they're not being fed, clothed, and taken care of

A.  No.

 

A psychologist confirmed that characterization of respondent's care for her children during her testimony.  Illustratively, social services' primary concern throughout its involvement with respondent's family has been her ability to properly supervise the children, and not her ability to care or provide food, clothing, shelter, or medical services for her children.  The county's initial Child Protective Services Plan, documentation of child-protection reports, and out-of-home placement plan all identify inadequate supervision as respondent's primary parenting problem.

            We recognize that Minn. Stat. § 260C.301, subd. 1(b)(2), is not so narrow as to restrict the statutory parental duty to provision of food, shelter, clothing, and medical care.  Although appellant directs us to no precedent for the proposition, we are persuaded that a parent's duties under the plain language of Minn. Stat. § 260C.301, subd. 1(b)(2), include the responsibility to properly supervise her children, and that under proper circumstances parental rights may be terminated when a parent fails to comply with this duty.  But the statute clearly requires that the parent's neglect of that duty to be "substantial[], continuous[], or repeated[]."  Minn. Stat. § 260C.301, subd. 1(b)(2). 

Here, the district court found that the incidents of inadequate supervision were isolated and not substantial, continuous, or repeated.  We cannot say that the district court's finding is clearly erroneous.  The documented instances in which respondent failed to properly supervise her children occurred over an extended period of time, from August of 2002 to September of 2005.  County records include six episodes in which respondent allegedly failed to properly supervise her children.  But not all of the incidents raise the same level of concern.  And for some of the incidents, respondent's degree of responsibility for the improper supervision is disputed. 

The county argued at oral argument that these incidents of improper supervision are representative of appellant's neglect of her parental duty.  But we will not override the district court and find a general pattern of neglect from discrete incidents.  Our role is more limited and the parent's interests are too great to permit such a reversal by this court.  The pattern of neglect must be more compelling.  Based on the length of time over which county complaints were filed, and the factual disputes surrounding those complaints, the district court's characterization of the incidents is not clearly erroneous.  

            Because the district court's finding that respondent did not refuse or neglect to comply with her parental duties under Minn. Stat. § 260C.301, subd. 1(b)(2), is not clearly erroneous, we affirm that finding.  Accordingly, we need not reach the district court's finding that termination was also not justified under Minn. Stat. § 260C.301, subd. 1(b)(2), because the county's efforts to correct the conditions leading to the petition did not fail. 

II.

The next issue is whether the district court's finding that respondent is not palpably unfit to be a parent is clearly erroneous.  The district court may terminate parental rights if it finds "that a parent is palpably unfit to be a party to the parent and child relationship."  Minn. Stat. § 260C.301, subd. 1(b)(4).  A parent is palpably unfit to parent because of a "pattern of specific conduct" or "specific conditions" which make the parent "unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child."  Id.  Proof of such specific, "permanently detrimental" patterns or conditions must be established over a period of time.  In re Welfare of B.C., 356 N.W.2d 328, 332 (Minn. App. 1984). 

            Mental illness, standing alone, is not a permissible basis for termination of parental rights.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  Instead, "the actual conduct of the parent is to be evaluated to determine his or her fitness to maintain the parental relationship with the child in question so as to not be detrimental to the child."  In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978).

             Here, the district court found that the county did not show that respondent was palpably unfit to be a parent:

Although there is evidence that [respondent] suffers from bipolar disorder and borderline personality disorder, the Court finds this fact alone insufficient to justify termination of [respondent]'s parental rights.  In this case, there have been isolated incidents in which [respondent] has made poor parenting decisions.  [Respondent] has not always supervised her children as closely as she should.  However, there is no evidence that [respondent] has abused [A.G.R.] or [T.M.R.] or that [respondent] has failed to provide them with food, clothing, shelter, or education.

 

            While evidence in the record indicates that respondent missed several therapy appointments and that her improvement eventually plateaued, the record also indicates that respondent made improvements in her parenting over the course of social services' involvement.  For example, a family skills worker met with respondent between 2004 and 2005 in an attempt to improve respondent's parenting skills.  Upon closing her services, the family skills worker reported that respondent did not achieve her goals, but did note progress:

After eleven months of service, it appears the family structure has somewhat changed for the better.  The chaos and conflict with each other in home has reduced.  The home condition has somewhat progressed . . . .  There has been some progress in areas of learning parenting skills, somewhat of a routine     . . . and supervision and safety . . . .  There has been progress on the way [respondent and her boyfriend] communicate and/or react toward children, communicate when problem solving with children, and define and do their roles in home.   . . .  It has been a real pleasure working with this family.  

 

The guardian ad litem also made some positive observations regarding respondent's parenting.  Additionally, the record indicates that respondent moved into a better, safer, and cleaner home shortly before the children were placed in foster care, that respondent removed the pets living in her home, and that respondent has also started working part-time, factors that should improve respondent's ability to provide for the welfare of her children.  On account of this progress, the district court's determination that the county failed to show respondent's inability to parent for the reasonably foreseeable future is not clearly erroneous.       

            We conclude that the district court's finding that the county failed to establish that respondent is palpably unfit to be a parent under Minn. Stat. § 260C.301, subd. 1(b)(4), is not clearly erroneous.

III.

The next issue is whether the district court's finding that the county failed to prove that reasonable efforts have failed to correct the conditions leading to out-of-home placement is clearly erroneous.  The district court may terminate parental rights if it finds that after placing the child outside of the home, the reasonable efforts of social services have failed to correct the conditions that caused the need for the placement.  Minn. Stat.  § 260C.301, subd. 1(b)(5).  Reasonable efforts to correct the conditions leading to out-of-home placement have presumptively failed if:

            (i) . . . In the case of a child under age eight at the time the [CHIPS] petition was filed . . . the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;

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

            (iii) conditions leading to the out-of-home placement have not been corrected . . .; and

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

 

Id.  Prong (iii) of this provision is presumptively satisfied "upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan."  Id., subd. 1(b)(5)(iii).

            The district court's analysis under this statutory standard was minimal:

The County has failed to prove that reasonable efforts have failed to correct the conditions leading to the placement of [A.G.R.] and [T.M.R.] in foster care.  [Respondent] has maintained regular contact with the children, and she has substantially complied with the out-of-home placement plans.  Although [respondent]'s relationship with Social Services has not been perfect, and [respondent] has exhibited resistance to instruction on some occasions, it appears that [respondent] has made significant efforts toward improving her parenting skills. 

 

            The parties do not dispute that the primary condition leading to out-of-home placement, and the primary risk identified in the out-of-home placement plans, was respondent's lack of supervision of her children.  The December 2005 plan identified several tasks respondent was required to complete in attempt to remedy this condition:

1.) Complete an updated parental capacity evaluation at Solutions and follow all recommendations. 

2.) Attend Individual Therapy to address Mental Health Issues

3.) Attend all scheduled appointments for [A.G.R. and T.M.R.]

4.)  Attend all scheduled supervised visits.

 

            Pursuant to the first requirement, respondent completed a parental-capacity evaluation.  The evaluation required significant participation from respondent; information was gathered over the course of four meetings.  Both that evaluation and the second requirement of the out-of-home placement plan required respondent to complete individual therapy, and dialectic behavior therapy (DBT).  The record indicates that respondent's completion of the second requirement was questionable.  Respondent sporadically attended individual therapy, insisted on switching therapists several times, was uncooperative during therapy, and stopped attending DBT altogether.  But the record indicates that respondent made efforts, without the help of social services, to re-enroll in DBT therapy prior to trial.

            Respondent fulfilled the requirements of the last two requirements out-of-home placement plan.  Although she only attended 50% of the children's appointments during the first 90 days after out-of-home placement, she attended all of the remaining appointments up to the time of trial.  And under the plan's fourth requirement, "[respondent] [was] very successful with attending her visits, she shows up on time.  Her visits go very well."  Respondent's successful visitation attendance is especially significant after the children were placed a greater distance from respondent's home in August of 2006.

            While respondent's poor performance with respect to the second requirement may have permitted the district court to find substantial noncompliance with the plan, evidence also supports the district court's finding.  The statute's text gives the district court some discretion to determine what constitutes "substantial[]" compliance, and we accord deference to the district court's factual findings due to its optimal opportunity to weigh conflicting evidence and judge witness credibility.  Id.  Here, the court's finding is not clearly erroneous given respondent's successful completion of the first, third, and fourth requirements and late efforts to complete the second requirement.  It is also significant that respondent candidly conceded her past parenting failures and the importance of adequate supervision. 

            This evidence of substantial improvement in respondent's living situation, securing of part-time employment, candid admission of shortcomings, and even the minimal progress in therapy supports the district court's finding that the county did not prove that reasonable efforts have failed to correct the conditions leading to out-of-home placement.  We find it problematic to require respondent to demonstrate correction of her previously inadequate supervision given that the county gave her no opportunity to independently supervise the children, despite her request for unsupervised visits.  We conclude that the district court's finding that respondent did not fail to correct the conditions leading to out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5), is not clearly erroneous.

IV.

The next issue is whether the district court's finding that respondent's children were not neglected is clearly erroneous.  The district court may terminate parental rights if "the child[ren] [are] neglected and in foster care."  Minn. Stat. § 260C.301, subd 1(b)(8).  "[N]eglected and in foster care" means children:

            (a) Who ha[ve] been placed in foster care by court order; and

            (b) Whose parents' circumstances, conditions, or conduct are such that the child[ren] cannot be returned to them; and

            (c) Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct . . . .

 

Minn. Stat. § 260C.007, subd. 24 (2004).  To determine whether children are "neglected," as defined by statute, the district court must consider the following factors:

the length of time the children have been in foster care; the parents' visitation record . . .; the parents' efforts to adjust circumstances, conduct, or conditions to make it in the children's best interest to return them to their home in the foreseeable future; . . . the appropriateness of services provided . . .; and whether additional services would likely bring about lasting parental adjustments enabling a return of the children . . . .   

 

In re Welfare of J.S., 470 N.W.2d 697, 703-04 (Minn. App. 1991), review denied (Minn. July 24, 1991).

            Here, the children were in foster care at the time of trial, but the district court found that the county failed to prove neglect under Minn. Stat. § 260C.301, subd 1(b)(8):

[Respondent] has visited her children regularly and has fought for unsupervised visitation.  [Respondent] has worked with many service providers and has attempted to address her parenting deficiencies.  Although [respondent] has not attended each and every appointment with her social workers, she has made progress towards her goal of improving her living conditions and parenting skills.  She has cleaned up her home and has begun working with professionals at Meritcare to deal with her mental illness.  With additional efforts, [respondent] will be capable of providing adequate care for her children.

 

            Here, the district court considered most of the relevant factors and its findings are supported by the record.  As discussed above, the county has never maintained that this is a classic case of neglect.  There is no evidence of inadequate provision of food, shelter, clothing, medical care, or education; and the substantial instability the children have faced in foster care, respondent's move to a better and cleaner home, her undisputed love for her children, and her acknowledgement of her parental shortcomings add further support to the district court's finding.  The record also indicates that despite respondent's changes in therapists, respondent continued to seek various forms of individual therapy prior to and at the time of trial.  On this record, we conclude that the district court's finding that the county failed to prove that respondent's children are neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8), is not clearly erroneous.

V.

            Finally, we consider whether the district court erred by failing to engage in a best-interests analysis.  The county asserts that the district court's failure to make such a finding was error.  The plain language of Minn. Stat. § 260C.301, subd. 7, indicates that the district court's best-interests determination becomes "the paramount consideration, provided that" the district court first finds that termination of parental rights is proper under subdivision 1(a) or one of the nine statutory standards enumerated in subdivision 1(b).  Here, the district court did not find that the county met its burden to show termination was proper under a standard identified in subdivision 1(b).  Therefore, the district court was not required to engage in a best-interests analysis and did not err in failing to do so. 

Because the district court's findings under the four statutory standards are not clearly erroneous, we affirm.

Affirmed.

 

Dated: