In the Matter of the Welfare of the Children of T. C., Parent.

In the Matter of the Welfare of the Children of T. C., Parent. A06-2047, Court of Appeals Unpublished, May 1, 2007.

This opinion will be unpublished and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

A06-2047

 

In the Matter of the Welfare of the Children of T. C., Parent.

 

Filed May 1, 2007

Affirmed

Halbrooks, Judge

 

Carlton County District Court

File Nos. 09-JV-05-2684, 09-JV-05-2685, 09-JV-05-2686

 

Keith M. Carlson, 807 Cloquet Avenue, P.O. Box 770, Cloquet, MN 55720 (for appellant T.C.)

 

Thomas Pertler, Carlton County Attorney, Dennis Genereau, Jr., Assistant County Attorney, Room 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent Carlton County)

 

Kathy Lingren, 505 Elmwood Street, Cloquet, MN 55720 (guardian ad litem)

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

On appeal from the district court's termination of her parental rights, appellant argues that (1) the district court and the county failed to make adequate efforts to reunify her with her children; (2) the record does not support the district court's conclusion that appellant failed to correct the conditions leading to the children's out-of-home placement; (3) the district court committed clear error by finding that the children were neglected and in foster care; and (4) the district court erred by refusing to allow appellant more time to comply with the out-of-home service plan.  We affirm.

FACTS

Appellant T.C. and her first husband, D.M., have three children together: J.A.C., born June 2, 1992; S.R.C., born October 28, 1994; and J.D.C., born April 26, 1996.  Appellant testified that, during the marriage, D.M. abused her in front of the children.  Therefore, shortly after J.D.C.'s birth, appellant took the children and left D.M.  D.M. committed suicide four months later.

In 1996, appellant began a relationship with a man named J.C.  In January 1997, Carlton County filed a CHIPS petition against appellant because of unsuitable living conditions in her home.  Appellant admitted to the petition and began her out-of-home placement plan.  The children were removed temporarily from the home, but they were returned to appellant's care in August 1998.[1]

Appellant married J.C. in 2003.  In March 2005, the county filed another CHIPS petition against appellant, alleging that the children had witnessed J.C. physically abusing appellant.  The petition also included allegations that appellant was using drugs and the living conditions were unsuitable.  In May 2005, appellant admitted to the CHIPS petition.  Appellant and her attorney met with representatives from the county, and appellant signed an out-of-home service plan (service plan) that, if completed, would allow her to regain custody of her children.

The service plan identified the county's concerns about appellant's living situation, including domestic violence between appellant and J.C., their alleged drug use, and the unsuitable living conditions in the home.  The service plan required appellant, among other things, to obtain an order for protection against J.C., to participate in domestic-abuse programs, to participate in parenting classes and counseling, to complete and follow the recommendations of a "Rule 25" chemical-dependency evaluation, and to complete random urinalyses as requested.  The service plan also addressed appellant's need to maintain safe and stable housing, explore financial assistance, and obtain and maintain stable employment. 

The county placed the children outside of appellant's home.[2]  Soon after appellant signed the service plan, the county precluded her from visiting the children because she refused to submit to the first urinalysis the county requested. 

In September 2005, the county filed a petition for termination of parental rights (TPR), alleging, in part, that reasonable efforts had failed to correct the conditions leading to the removal of the children under Minn. Stat. § 260C.301, subd. (b)(5) (2006), and that the children continued to be neglected and in foster care under Minn. Stat. § 260C.301, subd. (b)(8) (2006).  The district court scheduled trial for January 23, 2006. 

The district court held a series of review hearings leading up to trial.  At a review hearing in October 2005, the district court heard testimony indicating that the social worker, the guardian ad litem (GAL), the children's therapists, and their current caretaker all agreed that visitation was not in the children's best interests at that time.  Appellant was present, and the district court ordered her to write letters to the children that they could review during their therapy sessions.  The district court noted that visitation could be arranged with the children in Wisconsin and told appellant to "do the letter first, and then we'll get the visitation going."

The district court scheduled another review hearing in November 2005.  At that hearing, appellant stated that she had not sent a letter to the children, but she contended that their present guardian had told her that the social worker would not allow it.  The county denied that contention.  The district court again stated that appellant needed to write to the children so that the visitation process could begin. 

On January 23, 2006, the original date of the TPR trial, representatives from the county stated that appellant had done almost nothing to comply with her service plan.  Appellant stated that she wanted to discharge her attorney, and the district court ordered a continuance of the trial to allow her to secure new representation.  The district court warned appellant that she needed to comply with the terms of her case plan.  In February 2006, appellant wrote to the children once.

In April and May 2006, the district court held the continued TPR trial over three days.  On June 28, 2006, the district court issued its findings of fact, conclusions of law, and order, finding that "[a]lthough [appellant] has made ‘some' effort under the out-of-home service plan, she has not made sufficient effort or progress such that any of the three children can be returned to her care and custody at this time."  The district court indicated that the TPR might be in the best interests of the children, but it allowed appellant "one last chance" to make "substantial progress" on her plan.  The district court then ordered the children to remain in placement and have "therapeutically guided" visits with appellant "if and when deemed appropriate by the children's therapist" and the county.  The district court scheduled a review hearing regarding the TPR for November 7, 2006.

In July 2006, the county moved for reconsideration and immediate termination of parental rights, alleging that appellant had not been participating in out-of-home services since the conclusion of the TPR trial in May 2006.  The district court held a review hearing on August 4, 2006.  At that hearing, the district court ordered appellant to complete a urinalysis that same day, and it continued the hearing until the end of August.  But after leaving the hearing on August 4, appellant refused to provide a urine sample. 

In mid-August, appellant did provide a urine sample in connection with criminal charges against J.C.  That sample tested positive for both methamphetamine and amphetamine.  Shortly thereafter, appellant missed an appointment with a county psychologist and failed to comply with other requirements of her service plan.  Following the review hearing at the end of August, the district court concluded that it was in the children's best interests to terminate appellant's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).  This appeal follows.

D E C I S I O N

In reviewing a decision to terminate parental rights, appellate courts determine whether "the findings of fact of the juvenile court are supported by substantial evidence and are not clearly erroneous."  In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978) (citing Minn. R. Civ. P. 52.01).  Appellate courts "closely inquire[] into the sufficiency of the evidence to determine whether the evidence is clear and convincing."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  But "[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).

Appellate courts "must determine whether the [district] court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  When making these determinations, appellate courts exercise great caution, but "a court need find only one of the statutory grounds exists to terminate parental rights."  S.Z., 547 N.W.2d at 890.  The district court's findings must be clear and specific to the statutory requirements, "and the evidence must address conditions that exist at the time of the hearing."  Id. at 893.

Here, the district court concluded that there are two statutory grounds to terminate appellant's parental rights: Minn. Stat. § 260C.301, subd. 1(b)(5) (2006) (the county's reasonable efforts had failed to correct the conditions leading to removal), and Minn. Stat. § 260C.301, subd. 1(b)(8) (2006) (the children remained neglected and in foster care).

I.

 

Appellant's first argument challenging the district court's determination that reasonable efforts have failed to correct the conditions leading to out-of-home placement is that the county failed to make reasonable efforts to reunite her with her children because it prevented her from visiting with them.  Before parental rights may be terminated, reasonable efforts must be made to reunite the children with the parent.  Minn. Stat. § 260C.301, subd. 8(1) (2006); S.Z., 547 N.W.2d at 892.  Even if statutory grounds for termination exist, this court must determine whether there is clear and convincing evidence that the county made reasonable efforts to reunite the family.  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).

"Reasonable efforts" means "the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child's family" and reunify the family.  Minn. Stat. § 260.012(f)(2) (2006).  In determining whether reasonable efforts have been made, the district court must consider whether the services were "(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances."  Minn. Stat. § 260.012(h) (2006).

Here, the district court concluded that since the beginning of the CHIPS matters, the county provided appellant with numerous services and referrals that constituted reasonable efforts under the circumstances.  Appellant argues that the county prevented her from visiting the children during a substantial portion of these proceedings and, therefore, failed to make reasonable efforts to reunite appellant with her children. 

The record supports the district court's determination that direct visitation was inappropriate.  Appellant admitted that the county originally precluded her from visiting the children because she refused to do a random urinalysis, even though she had agreed to random testing as a component of the out-of-home service plan.  And at the October 2005 review hearing, the district court heard testimony that the social worker, the GAL, the children's therapists, and their current caretaker all agreed that direct visitation was not desirable at that time.

Nonetheless, the district court allowed appellant to initiate visitation in a manner that was appropriate under the circumstances.  After initially granting therapeutically guided visitation, the district court ordered the visitation process to begin with appellant writing letters that the children could review during their therapy sessions.  The district court noted that visitation could be arranged with the children in Wisconsin, and it told appellant to "do the letter first, and then we'll get the visitation going."  At the November 2005 review hearing, the district court reiterated that appellant needed to write to the children so that the visitation process could begin. 

The record further indicates that the district court provided appellant with a manner for initiating visitation with her children, that appellant was aware of the initial requirement to write a letter to her children, and that she failed to take even that first step until after the original TPR trial date.  On this record, the district court did not err in its determination that the county made reasonable efforts at reunification.

II.

 

Appellant next argues that the district court committed clear error in finding that the county's efforts failed to correct the conditions that required out-of-home placement.  A district court may terminate parental rights when it 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."  Minn. Stat. § 260C.301, subd. 1(b)(5). 

"Efforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure."  In re Welfare of J.H.D., R.M.D. & C.M.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  The assistance must "go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help."  In re Welfare of J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).  Such help must focus on the parent's specific needs.  In re Welfare of M.A. & J.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

It is presumed that reasonable efforts have failed upon a showing of the following: (1) "a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months"; (2) the district court approved the out-of-home placement plan; (3) "conditions leading to the out-of-home placement have not been corrected"; and (4) "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).  Furthermore, "[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 or parents have not substantially complied with the court's orders and a reasonable case plan."  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii).

Here, the service plan required appellant to obtain an order for protection against J.C., to participate in domestic-abuse and parenting programs, to complete and follow the recommendations of a "Rule 25" chemical-dependency evaluation, and to complete random urinalyses as requested.  The plan also addressed appellant's need to maintain safe, stable housing and to obtain and maintain stable employment.  The record shows that appellant failed to comply with her service plan.  At the time of appellant's TPR trial in April, she was still in a relationship with J.C., and she had not taken any steps to secure an order for protection or to distance herself from him.  Appellant did not have a job, and she had not worked since before the county removed the children from the home.  In addition, appellant failed to complete a valid rule-25 evaluation, and she had only attended one domestic-abuse programming session on the eve of trial.

The record also shows that the district court gave appellant several chances to comply with the service plan.  Following the TPR trial in May 2006, the district court allowed appellant "one last chance" to substantially comply with the service plan.  Then, at the August 4 review hearing, the district court expressed its continuing concerns about appellant's potential drug use, but she stated that she could pass a drug test that day.[3] So, the district court continued the matter and ordered appellant to provide a urine sample immediately.  Appellant refused.  Later, on August 16, 2006, as part of a criminal matter relating to J.C., appellant submitted a urine sample that tested positive for both amphetamine and methamphetamine.

Although the district court allowed appellant many opportunities to comply with the service plan, she repeatedly failed to comply with even the most basic elements of that plan.  Thus, the district court did not commit clear error in determining that the county's reasonable efforts failed to correct the conditions leading to placement outside of the home and by terminating her parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).

III.

Appellant contends that the district court committed clear error in finding that the children remained neglected and in foster care.  A district court may terminate parental rights if it finds that a child is neglected and in foster care.  Minn. Stat. § 260C.301, subd. 1(b)(8).  "Neglected and in foster care" means a child who has been placed in foster care and "[w]hose parents' circumstances, condition, or conduct are such that the child cannot be returned to them" and "[w]hose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child."  Minn. Stat. § 260C.007, subd. 24 (2006).

To determine whether a child is neglected and in foster care, a district court may consider, among other things,

(1) the length of time the child has been in foster care;

 

(2) the effort the parent has made to adjust circumstances, conduct, or conditions that necessitates the removal of the child to make it in the child's best interest to be returned to the parent's home in the foreseeable future, including the use of rehabilitative services offered to the parent;

 

(3) whether the parent has visited the child within the three months preceding the filing of the petition, unless extreme financial or physical hardship or treatment for mental disability or chemical dependency or other good cause prevented the parent from visiting the child or it was not in the best interests of the child to be visited by the parent;

 

(4) the maintenance of regular contact or communication with the agency or person temporarily responsible for the child;

 

(5) the appropriateness and adequacy of services provided or offered to the parent to facilitate a reunion;

 

(6) whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time, whether the services have been offered to the parent, or, if services were not offered, the reasons they were not offered; and

 

(7) the nature of the efforts made by the responsible social services agency to rehabilitate and reunite the family and whether the efforts were reasonable.

 

Minn. Stat. § 260C.163, subd. 9 (2006).  The district court balances these factors, considering both the interests of the parents and the interests of the child, along with the particular circumstances in each case.  In re Welfare of HGB, MAB & DJB, 306 N.W.2d 821, 826, 827 (Minn. 1981).  But the district court need not specifically address each factor so long as its "detailed findings of fact demonstrate the existence of many of the factors outlined in the statute, and provide clear and convincing evidence."  In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995).

In this case, the children remained in foster care for 17 consecutive months.  In determining that the children remained neglected and in foster care, the district court considered, among other things, appellant's lack of a stable living situation and her continued relationship with J.C., in light of the allegations that he had abused both appellant and the children.  The district court also considered appellant's drug problems, the GAL's continued recommendation for termination of her parental rights, and appellant's repeated failure to comply with the other aspects of the service plan.  For example, appellant did not have direct visitation with the children because the district court determined that such visitation was not in the children's best interests initially.  Despite the fact that the district court gave appellant the opportunity to initiate the visitation process by first writing to the children, she failed to do so until after the original trial date. 

We conclude that the district court properly considered the factors outlined in the statutes and that there is clear and convincing evidence in the record that the children remain neglected and in foster care.  Thus, the district court did not commit clear error in terminating appellant's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(8).

IV.

 

In its June 28, 2006 order, the district court continued the TPR trial until November 2006 to allow appellant "one last chance to make substantial progress" on her service plan.  As a result, appellant argues that the district court then erred by holding review hearings in August 2006, not allowing her to continue working on her service plan until November 2006.  But appellant cites no legal authority for this argument.  An assignment of error is considered waived if it is based on mere assertion and not supported by argument or authority, unless prejudicial error is obvious upon mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). 

            Furthermore, Minn. R. Juv. Prot. P. 41.06, subd. 1, states that "[w]hen disposition is an award of legal custody to the responsible social services agency, the court shall review the disposition in court at least every ninety (90) days.  Any party or the county attorney may request a review hearing before ninety (90) days."  Here, the county requested a review hearing because appellant had made almost no effort to comply with the case plan since the TPR trial.  The district court stated that it would not make the children wait an additional six months for permanency if appellant was not complying with the service plan and that earlier review would be appropriate if that were the case.  We, therefore, conclude that the district court did not err in reviewing the proceedings before November 2006.

            Affirmed.

[1] The county filed a second CHIPS petition at around the same time; but the children were not removed, and the second petition was dismissed.   

[2]Initially, the children lived with some of their father's relatives, but beginning in August 2005, they lived in Cumberland, Wisconsin, with appellant's brother and sister-in-law.

[3]Despite the district court's repeated reminders of the need for random urinalyses, appellant had not provided a urinalysis since the children were removed.  Appellant claimed that the urinalyses cost too much, but the county indicated that appellant would not have been charged based on her level of need.