In the Matter of the Welfare of the Child of: H. K. and P. K., Parents.

In the Matter of the Welfare of the Child of: H. K. and P. K., Parents. A07-342, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and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

A07-342

 

In the Matter of the Welfare of the Child of:

H. K. and P. K., Parents.

 

Filed July 24, 2007

Affirmed

Halbrooks, Judge

 

Lyon County District Court

File No. 42-JV-06-338

 

Paul E. Grabitske, Eskens, Gibson and Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN 56002 (for appellant P.K.)

 

Richard R. Maes, Lyon County Attorney, Nicole Springstead, Assistant County Attorney, 607 West Main Street, Marshall, MN 56258 (for respondent Lyon County Human Services)

 

Donna Rathje, 607 West Main Street, Marshall, MN 56258 (guardian ad litem)

 

H. K., 42485 Sterling Highway #1, P.O. Box 752, Homer, AK 99603 (respondent)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, 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,[1] appellant P.K. argues that the district court erred by:  (1) concluding that appellant failed to comply with her parental duties; (2) concluding that appellant is palpably unfit to be a parent; (3) concluding that reasonable efforts failed to correct the conditions leading to placement; (4) concluding that the child is neglected and in foster care; (5) failing to make required findings of fact regarding the best interests of the child; and (6) failing to make the required findings of fact regarding a change in custody.  Because the district court properly applied the law and because the record supports its findings and conclusions, we affirm.

FACTS

Appellant's child first came to the attention of Lyon County Human Services in April or May 2005.  The child often wore the same clothes to school, had holes in his shoes, and had body odor and other hygiene issues.  Human Services offered to assist appellant in caring for the child, but appellant declined.

The child is a hemophiliac and needs treatment for bleeding incidents.  When appellant felt that the child was having a bleeding incident, she often kept him home from school for long periods of time.  A school official offered to assist with the child's attendance issues and the resulting "depressed school performance," but appellant denied that assistance.

In October 2005, Human Services conducted a welfare check and found that the general condition of appellant's apartment was not suitable for habitation.  It had fruit flies, an unfit bathroom, and old, moldy food on the counters and in the sink.  Human Services then brought a petition, alleging that the child was in need of protection or services.  On October 12, 2005, the child was placed outside of the home because of unfit living conditions.

A case plan was developed for appellant, who suffers from mental illness including schizophrenia and extreme paranoia, and, in subsequent inspections and throughout the proceedings, her home was found to be clean.  But appellant failed to participate in required supervised visits with her child, and she violated the terms of a district court order by visiting the child while he was with grandparents.  Although appellant had knowledge of the child's medical condition, she was resistant to changes in treatment methods and uncooperative with medical recommendations. 

The child remained in placement outside of appellant's home until Human Services moved for termination of parental rights (TPR) in September 2006.  The district court heard testimony at the TPR hearing in early December 2006 from several witnesses, including psychological experts, and received more than 75 documents into evidence. 

The district court found that appellant had failed to comply with her case plan and that appellant believed that all of the problems that she and the child experienced were being caused by the county and the agencies involved in this case.  The district court also found that appellant failed to recognize the child's needs, that appellant failed to meet her own mental-health needs, that no services had been identified to help correct the situation, and that the situation could not reasonably be changed in the foreseeable future.  Therefore, the district court concluded that TPR was appropriate under Minn. Stat. § 260C.301, subds. 1(b)(2), 1(b)(5), and 9(b)(4) (2006), on the grounds that appellant had failed to meet her duties as a parent, was palpably unfit to be a parent, reasonable efforts had failed to correct the conditions leading to placement, and the child remained neglected and in foster care.  The district court further concluded that it would be in the child's best interests to terminate appellant's parental rights.  This appeal follows.

D E C I S I O N

In reviewing a termination of 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 review "takes into account the substantive evidentiary burden of clear and convincing evidence."  In re Tanghe, 672 N.W.2d 623, 625 (Minn. App. 2003) (citing In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980)).

Parental rights may be terminated for one of nine statutory reasons.  Minn. Stat. § 260C.301, subd. 1(b) (2006).  Once the district court determines that a statutory reason exists, the paramount consideration in determining whether to terminate parental rights is "the best interests of the child."  Minn. Stat. § 260C.301, subd. 7 (2006); see also Tanghe, 672 N.W.2d at 625 (discussing Minn. Stat. § 260C.301, subd. 7 (2002)). 

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).  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."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  Although appellate courts must exercise great caution in reviewing a decision to terminate parental rights, "a court need find only one of the statutory grounds exists to terminate parental rights."  Id. at 890, 893.  In addition, "[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).

I.

 

A.        Repeated failure to comply with parental duties

First, appellant argues that the district court erred in concluding that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(2), which states that a district court may terminate parental rights if it finds

that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship, including but 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, 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[.]

 

            The district court found that appellant lacked the ability to provide the child with clothing, a safe and healthy home, a proper education, and proper medical care.  The district court also found that appellant suffered from extensive mental-health issues, including schizophrenia and extreme paranoia, but refused to participate in counseling programs and could not meet her own mental-health needs.

The district court's findings are supported by substantial evidence in the record.  For example, the district court heard testimony from school officials indicating that the child dressed inappropriately, had serious hygiene issues, and had serious attendance problems at school, primarily because of appellant's response to the child's hemophilia.  The district court received a psychological evaluation indicating that appellant suffered from severe mental-health problems that (1) could not be treated by medication and (2) prevented appellant from being a successful parent at the time of trial or in the foreseeable future.  The district court also found that appellant physically struck the child on occasion and then instructed him to deny that the event ever occurred. 

The record also indicates that the child was afraid to return to appellant's care and that he felt that he was being used as a pawn in a dispute between appellant and her parents.  After the child left appellant's care, his health, school attendance, and academic performance improved.  Finally, the record indicates that appellant repeatedly failed to comply with or participate in her case plan and the services provided to her.

Appellant argues that the district court erred by failing to make an independent finding that appellant was physically or financially able to comply with her parental duties.  But appellant cites no cases in support of her proposition, and the district court was not required to make such an explicit finding.  Furthermore, it does not appear that poverty was an issue in this case, and there is nothing in the district court's decision to indicate that it considered appellant's financial situation to be a barrier to her ability to perform her parental duties.  Rather, the district court found that appellant was "physically and financially able" to meet the child's needs, but repeatedly failed to do so.

Appellant also argues that the district court erred by considering only her mental illness, especially considering her argument that the child is "capable of dealing with and adjusting to [a]ppellant's mental health conditions."  But the district court properly indicated that mental illness, in and of itself, is not a sufficient basis for termination of parental rights, and it went on to analyze all of the circumstances in this case.  On this record, the district court did not err in determining that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(2).

B.        Palpable unfitness

Appellant argues that the district court erred in concluding that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(4), which states that a 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 because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child. 

 

The determination of whether a parent is palpably unfit boils down to a question of whether she has the capacity to parent or the ability "to engage in constructive efforts to improve [her] ability to parent."  In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  Here, the district court found that appellant's mental illness is likely to continue for a prolonged, indeterminate period of time, that her illness prevents her from performing her parental duties, and that she has repeatedly failed to meet her own mental-health needs, despite efforts by the county and others to assist her.  As indicated above, the record supports these findings.

Appellant argues that because she was able to maintain a cleaner home and provide for the child's medical needs, she is fit to parent.  But as the district court indicated, appellant often used the child's illness as a means of controlling him, to his detriment.  Furthermore, the district court properly found that appellant lacks the capacity to recognize her shortcomings as a parent and that she has been consistently unable to take advantage of the services offered and unable to take steps to deal with her mental illness.

Appellant contends that the district court merely determined that it would be difficult for appellant to parent, but not that appellant is unable to parent.  But based on the psychological evidence before it, the district court indicated that any success appellant may have had to this point would become more difficult as the child ages.  In addition, the district court found that appellant refused and lacked the ability to provide for her own mental-health needs, and it found that she "is not currently able to care for the child and will not reasonably be able to do so at any time in the foreseeable future."  This record supports the district court's determination that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(4).

C.        Efforts failed to correct conditions leading to placement

Appellant contends that the district court erred in concluding that a TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(5), which provides that a district court may terminate parental rights if 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."  Reasonable efforts 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).

But 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 agencies offered or provided at least 14 different services that were tailored to meet appellant's particular needs, including adult mental-health services, therapy, home health care, financial assistance, and supervised visitation.  But appellant failed to follow her case plan, and she repeatedly refused to participate in or comply with the services offered.  Appellant argues that the unsanitary condition of her home was corrected and, therefore, that she corrected the conditions leading to removal.  But the district court is required to consider the conditions existing at the time of trial.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  Although appellant's house may have been cleaner, appellant failed to comply with almost every other aspect of her case plan, and the child had been out of the home for well over 12 months.  We therefore conclude that the district court did not err in determining that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(5).

D.        Neglected and in foster care

Appellant next asserts that the district court erred in concluding that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(8), which indicates that a district court may terminate parental rights if it finds "that the child is neglected and in foster care[.]"  "Neglected and in foster care" is defined as a child who has been placed in foster care by court order 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).

In determining whether a child is neglected and in foster care, the court shall consider, among other factors, the following:

(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 the factors listed in section 260C.163, subdivision 9, 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, 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).

Appellant argues that the district court did not address the seven factors listed above.  But the district found that the county provided extensive services that were tailored to address appellant's needs; that appellant repeatedly failed to comply with or participate in these services, including visitation; that the child had been in foster care for more than 12 months; and that appellant's mental illness prevented successful return of the child in the future.  As indicated above, the record supports these findings.  As a result, the district court did not err in determining that TPR was appropriate under Minn. Stat. § 260C.301, subd. 1(b)(8).

II.

Appellant argues that the district court erred by failing to make required findings of fact regarding the best interests and a change in custody of the child.

A.        Best interests of the child

Appellant argues that "[t]he TPR Order is entirely deficient in findings and explanation on the components of the best interests of the child[] analysis."  In any termination proceeding, "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C.301, subd. 7.  Thus, the district court may not terminate parental rights unless termination is in the child's best interests, even if other statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 723 (Minn. 1998). 

The best-interests analysis 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.

An order terminating parental rights must explain the district court's rationale for concluding that termination is in the best interests of the child.  In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn. App. 1996); see also Minn. R. Juv. Prot. P. 41.05, subd. 1(a) (requiring disposition orders to include "a statement explaining how the disposition serves the best interests and safety of the child").  Best-interest findings are insufficient when "they are ‘inadequate to facilitate effective appellate review, to provide insight into which facts or opinions were most persuasive of the ultimate decision, or to demonstrate the court's comprehensive consideration of the statutory criteria.'"  Tanghe, 672 N.W.2d at 626 (quoting In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990)).

Appellant argues that the district court failed to explain its rationale for terminating her parental rights.  But as indicated above, the district court made extensive findings regarding the child's best interests, including his educational and environmental needs, his reluctance to return to appellant's care, and his health issues.  The district court also found that the child's situation was improving outside of appellant's care.  The district court considered the statutory factors in great detail, and the district court's order provides adequate findings to facilitate appellate review.

In both her brief and reply brief, appellant argues that the district court erred by failing to provide a prospective analysis of the child's best interests.  But the district court did provide such an analysis.  For example, it expressed great concern about appellant's mental illness, and it indicated that even with the assistance of services, her condition is likely to continue for a prolonged and indeterminate time.  The district court also found that appellant was unable to meet the child's needs both at the time of trial and in the foreseeable future.  The district court did not clearly err by failing to make required findings regarding the best interests of the child.

B.        Change in custody

            Appellant argues that because the TPR order constitutes a change in custody, the district court erred by failing to "list or analyze any of the factors required to be considered" by Minn. Stat. § 260C.212, subd. 2 (2006), and Minn. R. Prot. Juv. P. 41.05.  The statute and rule both indicate that the district court should consider in its written findings, among other things, the following factors: (1) the child's current functioning and behaviors; (2) the medical, educational, and developmental needs of the child; (3) the child's history and past experience; (4) the child's religious and cultural needs; (5) the child's connection with a community, school, and faith community; (6) the child's interests and talents; (7) the child's relationship to current caretakers, parents, siblings, and relatives; and (8) the reasonable preference of the child, if the court, or the child-placing agency in the case of a voluntary placement, deems the child to be of sufficient age to express preferences. 

As indicated above, the district court considered many of these factors, including the child's medical history, his development both in and out of appellant's care, his relationship with appellant and her family, and his fear and reluctance to return to appellant's care.  Therefore, the district court did not err by failing to make required findings regarding the child's placement.

            Affirmed.

 

[1] The child's father, H.K., does not challenge the termination of his parental rights.