In the Matter of the Welfare of the Children of: C.M.S. and M.D.S., Parents.

In the Matter of the Welfare of the Children of: C.M.S. and M.D.S.,Parents. A07-658, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and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
A07-658

 

In the Matter of the Welfare of the Children of:
C.M.S. and M.D.S., Parents

 

Filed October 30, 2007

Affirmed

Peterson, Judge

 

Anoka County District Court

File No. J1-06-51228

 

 

Sherri D. Hawley, 13055 Riverdale Drive Northwest, Suite 500, PMB 246, Coon Rapids, MN  55448-8403 (for appellant father M.D.S.)

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Suite 720, Anoka, MN  55303 (for respondent Anoka County Department of Community Social Services)

Kenneth J. Dee, Assistant Public Defender, 433 Jackson Street, Anoka, MN  55303 (for respondent mother C.M.S.)

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 Klaphake, 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 appellant father's parental rights to his two youngest children, appellant argues that the record lacks clear and convincing evidence that any of the alleged statutory bases for termination exists.  We affirm.

FACTS

            Appellant father M.D.S. and respondent mother C.M.S. are the biological parents of a son who is now five years old and a daughter who is now four years old.  In 1993, father was charged with making terroristic threats, first-degree criminal sexual conduct, and malicious punishment of a child.  Father pleaded guilty to the terroristic-threats charge and was required to register as a sex offender during the probationary term.  Hennepin County Department of Child and Family Services also brought a child-protection action against father regarding an older child, J.S., who is not involved in this case.  In conjunction with his criminal and child-protection cases, father saw several mental-health professionals.

            In March 1994, Dr. Grace Hong saw father for a presentence psychological investigation.  Hong administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2).  Based on his MMPI-2 scores, Hong placed father in a group of people that have "stormy relationships" with family and tend to blame family for their difficulties.  Hong concluded that "because [father] blames others for these problems, he has little or no motivation for personal change."  Hong indicated that father "is likely to enter treatment only to avoid external pressure." 

            In November 1994, father saw Dr. Owen Nelsen.  Nelsen also administered the MMPI-2.  Father's MMPI-2 scores indicated impulsiveness, immaturity, and efforts to seek immediate gratification.  Nelsen found that father's MMPI-2 profile was consistent with a diagnosis of a personality disorder.  Nelsen concluded that father's "tendency to blame others for his problems means he has little motivation to change and if he agrees to treatment, [it] is likely to avoid or reduce external pressures." 

            In April 1996, Dr. Seymour Gross examined father.  Gross also administered the MMPI-2.  Although father's test score indicated that father was less defensive than during previous administrations of the MMPI-2, it indicated that his profile was associated with people who have problems with authority figures.  His test score also placed him in a group of people who tend to be mistrustful and suspicious of others and blame others, rather than accepting self responsibility.  Gross found that if the allegations against father were substantiated, it would be "quite difficult for [father] to participate in a treatment or rehabilitation program as long as he firmly denies responsibility for the alleged abusive behavior." 

            In August 1996, the district court terminated father's parental rights to J.S.  The district court specifically found that father physically abused J.S. and J.S.'s mother (father's ex-wife). 

            On July 22, 2005, father was arrested for failing to register as a sex offender and was placed in jail.  Because father had obtained an order for protection (OFP) against mother on behalf of the two children involved in this action, the children could not be placed with mother and, instead, were placed in an emergency foster home.  On July 27, 2005, respondent Anoka County Department of Community Social Services filed a CHIPS petition alleging that mother and father physically abused the children and locked them in their rooms. 

            In August 2005, caseworker Robert Wehling submitted a case plan to the district court for approval.  The case plan identified two risks to the children's safety.  The first risk was that the children were "potentially exposed to domestic violence."  The case plan required that father "participate and complete a domestic violence program approved by social services and follow recommendations."  The second risk was that the children's safety was potentially affected by father's mental-health issues and that father had a history of being abusive.  The case plan required father to complete a psychosexual examination and follow recommendations. 

            Also in August 2005, father began supervised visitations with the children at the Early Childhood Family and Education Program (ECFE).  After each visitation session, ECFE staff would provide father and Wehling with feedback about father's parenting interaction with the children.  The feedback that ECFE provided focused mainly on the strengths of the parent rather than the deficits.  Because ECFE feedback focused mainly on the positive aspects of the visitation and parenting, the feedback forms were not necessarily a thorough record of father's visitation.  While the forms might articulate parenting deficits, they would not focus on them.  But ECFE staff contacted Wehling several times to indicate that the parenting visits were not going well. 

            Father began ECFE visitations in a supervised, group-visitation setting, but after two weeks of observing his visits, ECFE staff recommended that he have individual visits that would provide closer supervision and parenting education.  Instead of spending equal amounts of time with the children, father spent more time with his daughter than his son, and he appeared to get angry or frustrated with the children's behavior. 

            In September 2005, the district court approved father's case plan.  Later that month, ECFE staff held a meeting with father because the staff felt that father's parenting sessions were unproductive and that father was not making adequate progress in the program.  During the meeting, father was defensive, raised his voice, and refuted what the ECFE director was saying.  Because father did not listen to ECFE's recommendations and challenged the staff's suggestions, all of the items that were to be discussed at the meeting were not covered.  A week later, ECFE staff held another meeting with father, and father was still unreceptive to the staff's comments and recommendations. 

            On October 4, 2005, father had his last visitation at ECFE.  Two days later, ECFE sent Wehling a letter indicating that it terminated father's supervised visitation because father had a history of violent behavior and was not receptive to ECFE's feedback about his parenting.  ECFE also indicated that father "needs more in-depth therapeutic parenting services."  The guardian ad litem (GAL), who also observed some of father's ECFE visitations, indicated that father "seems to display a great deal of frustration, anger, and hostility toward the children and their behavior."  The GAL stated that the children seemed afraid of father. 

            On October 11, 2005, the district court adjudicated the children CHIPS with respect to father.  Later that month, Wehling tried to arrange therapeutic visitation between father and the children at the Anoka County Government Center (ACGC).  This visitation would have been in the morning because the son was attending Early Childhood Special Education Programming in the afternoon.  Father declined to participate in this therapeutic visitation. 

            In November 2005, father began supervised, nontherapeutic visitation at the ACGC.  Wehling indicated that these visitation sessions were "hit or miss," and that while father sometimes had constructive interaction with the children, at other times he would be angry or frustrated.  During one visitation, father became angry with the children, was unprepared to change his daughter's diaper, gave the children candy that made them sick, made inappropriate comments to the children about when they could come home, and brought a knife, which he left within reach of the children.  A few days after the visitation, the ACGC staff and Wehling informed father that this type of behavior was counterproductive and unacceptable. 

            In November 2005, Dr. James H. Gilbertson examined father.  Gilbertson also reviewed the reports from Hong, Nelsen, and Gross.  Gilbertson determined that father had not changed from his earlier evaluations.  Gilbertson indicated that father continues to be in denial, minimizes, and uses blame as a way to handle any critique of his behavior or parenting. 

            In December 2005, Wehling arranged for supervised visitation between father and the children with Dr. Daniel Munson at Munson's office.  The first visitation was canceled because Munson was late, and the second visitation was delayed because Munson was late.  Because Munson could not conduct the visitations within the appropriate timeframes and did not provide an appropriate amount of security for the children's foster parent, the visitations were moved to the ACGC. 

            In early January 2006, Dr. Joseph Wotruba, who met with father in August, November, and December 2005, determined that a referral to the domestic abuse program would not be beneficial to father.  Wotruba recommended moral recognition therapy (MRT).  Father attended only one MRT session, and he characterized MRT as "a sad joke." 

            In January 2006, the district court ordered that father continue visitation.  The district court also allowed the county to stop visitation if Deena McMahon, the director of in-home services at Therapeutic Services Agency, completed her review of the children's services and determined that father's visitation is damaging to the children. 

            The record is not clear about the visitation that occurred from January to March 2006, but it appears that visitations continued to occur at the ACGC and in March 2006, father began having joint visitation sessions with mother.  Father's visitations were changed to joint visitations, in part, because he was having difficulty with individual visitations. 

            On March 9, 2006, McMahon issued her report, recommending that father's (and mother's) visitation cease.  McMahon indicated that the children's psychologist, Dr. Virginia Shaver, diagnosed the son with reactive attachment disorder.  Shaver also indicated that both children suffer from a "severe emotional disturbance" and that they were traumatized by early neglect.  On March 23, 2006, the department filed a petition to terminate parental rights, On March 24, 2006, the district court suspended father's visitation, and father has not seen the children since then. 

            In April 2006, father began seeing Munson for individual therapy.  Munson indicated that the goal of the therapy was for father "to find hope, to find a different way to cope with problems and the issues of life, to find peace and strength and confidence in himself again."  Soon after beginning his therapy with Munson, father revoked his medical-information release for the county.  Munson did not talk to Gilbertson, Wotruba, Wehling, or the GAL and did not review the court file. 

            A trial on the termination petition occurred on various dates in June, August, September, October, and December 2006.  Following the trial, the district court terminated father's parental rights because (1) he is palpably unfit, (2) he failed to correct the conditions that led to the children's placement, and (3) the children are neglected and in foster care.  Minn. Stat. § 260C.301, subd. 1(b)(4), (5), (8) (2006).  This appeal followed.

D E C I S I O N

            Father argues that the county failed to prove by clear and convincing evidence that his parental rights should be terminated under any of the statutory bases asserted in the petition.  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).  We consider the conditions as they existed at the time of the termination hearing and rely "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) (quotation omitted).  

            The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2006) (listing nine criteria).  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).  "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 father's parental rights under three statutory bases.  Proof of one statutory basis is sufficient, and the best interests of the child is the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2006).

            The district court may terminate parental rights if it determines "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).  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.  In the case of a child under age eight at the time the petition was filed alleging the child to be in need of protection or services, the presumption arises when 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.  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.

 

Id., subd. 1(b)(5)(i)-(iv).

            Father argues that the presumption set forth in Minn. Stat. § 260C.301, subd. 1(b)(5)(i)-(iv), does not apply because the children are under age eight and he maintained regular contact with the children and complied with the out-of-home placement plan.  But satisfying those conditions only prevents the presumption from arising after just six months, rather than 12 months, when a child is under age eight; the 12-month cumulative period applies to all children, including children under age eight for whom the presumption did not arise when they had resided out of the parental home for six months.  Minn. Stat. § 260C.301, subd. 1(b)(5)(i).  Here, the children were placed in foster care in July 2005, and by the time the trial concluded, they had been in foster care for almost a year and a half.  Regardless of whether father maintained regular contact with the children and complied with the out-of-home placement plan, the presumption applies because the children had resided out of the parental home under court order for more than 12 months.  Furthermore, as discussed below, father did not comply with the out-of-home placement plan.

            There is no dispute regarding the second factor, and the record contains a court-approved out-of-home placement plan.  Minn. Stat. § 260C.301, subd. 1(b)(5)(ii).

            Father also argues that the conditions that led to the out-of-home placement were corrected.  Father contends that the conditions that led to the children's out-of-home placement were his arrest and the OFP against mother.  But although it is true that these two conditions led to the children's initial placement and the conditions were corrected early in the child-protection proceeding, the case plan indicates that the continued placement was based on allegations of neglect, domestic abuse, and father's mental-health issues.  The case plan identified two specific areas of concern for father: (1) domestic violence and (2) his mental-health issues. 

            Because domestic-abuse programming was not appropriate for father, he was referred to MRT.  But father attended only one MRT session, and he described the session as a "sad joke."  Also, the MRT instructor indicated that father was "[a] bit of a problem" and that father denied that he had any problems.  Father alleged that he could not afford the $60 fee for MRT, but the program was willing to work out a flexible payment plan.  Furthermore, it is undisputed that father was employed during this time.  Because father failed to attend the program, he was terminated.  Based on this record, father did not comply with the requirement in the out-of-home placement plan that he complete a domestic-violence program.

            The second area of concern for father was his mental health.  Gilbertson determined that father had not addressed the mental-health issues that were identified in his prior evaluations.  Gilbertson stated in both his report and his testimony that father still has long-term mental-health issues that affect his ability to parent his children.  Gilbertson determined that father was unreceptive to change, had impulse and anger-control problems, and was unwilling to accept responsibility for his own problems.  Gilbertson's report states that father

presents today in very much the same way he presented psychologically, in 1993 and 1994, to the other psychological evaluators.  He has consistently been seen as suffering from Personality Disorder and there is nothing in this evaluation that would change that diagnosis.  He has continuously been seen as in denial, minimizing, or utilizing blame as a method to handle any allegations or critique of his behavior or his emotional or parenting stability.  That same adjustment pattern proves true today. 

 

Gilbertson found that "there is no persuasive evidence that [father] has a personality that is available for change."  At trial, Gilbertson testified that the various psychological examinations that father has undergone over a period of 12 to 13 years all indicated that father underestimates his difficulties, minimizes his problems, has not learned from past experiences, and lacks self insight.  Gilbertson testified that because father denies and minimizes his problems, successful treatment would require 18 to 24 months.  The district court found Gilbertson's testimony credible, and Gilbertson's testimony supports the district court's finding that father "failed to adequately address his long standing personality disorder and that as a result he is not capable of parenting his children."

            The district court also found that father's therapy with Munson "did not address [father's] long-standing personality disorder; which is what prevents him from parenting his children."  This finding is supported by the undisputed fact that by revoking his medical-information release, father prevented Munson from communicating with Gilbertson, Wotruba, Wehling, and other professionals involved with father's case.  Because father went to only one MRT session and did not adequately address his mental-health issues, he did not substantially comply with the out-of-home placement plan and failed to correct the conditions that led to the children's continued placement in foster care.

            Finally, father argues that the county failed to make reasonable efforts to reunite him with his children.  Before parental rights may be terminated, reasonable efforts must be made to rehabilitate the parent and reunite the children with the parent.  Minn. Stat. § 260C.301, subd. 1(b)(5)(iv); see also Minn. Stat. § 260C.301, subd. 8(1) (2006) (requiring specific findings regarding reasonable efforts).  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" requires "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 to reunify the family.  Minn. Stat. § 260.012(f)(2) (2006); see also R.W., 678 N.W.2d at 56 (analyzing reasonable-efforts requirement).  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).  "The nature of the services which constitute ‘reasonable efforts' depends on the problem presented."  S.Z., 547 N.W.2d at 892.  "Reasonable efforts" require the county to provide services that "go beyond mere matters of form so as to include real, genuine assistance."  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).

            The county provided supervised parenting at ECFE.  But father's parenting skills did not get better.  Because he was not properly interacting with the children, his visitation was changed from group visitation to individual visitation, and eventually ECFE visitation was terminated.  The county also offered father supervised, therapeutic visitation, but father declined.  Father argues that the finding that he declined therapeutic visitation is clearly erroneous, but Wehling's report indicates that Wehling offered morning therapeutic visitation to father, and father declined.  This report, which was submitted as evidence during the trial, supports the district court's finding that father declined therapeutic parenting services, and the finding is not clearly erroneous.

            The county provided other, nontherapeutic visitation sessions, but father's visitations did not improve and continued to adversely affect the children.  Gilbertson performed a psychological evaluation.  Also, when Wotruba determined that father was not amenable to domestic-abuse treatment, he recommended MRT.  But father attended only one MRT session.  We conclude that clear and convincing evidence supports the district court's finding that the county made reasonable efforts to rehabilitate father and reunite the children with father.

            Because clear and convincing evidence supports the district court's determination that following reasonable efforts by the county, father failed to (1) complete therapy aimed at his history of domestic violence and (2) adequately address his mental-health issues, the district court did not err in terminating father's parental rights because he failed to correct the conditions that led to the children's out-of-home placement.  Because proof of only one statutory basis for termination is required, we will not address the other statutory bases that the district court concluded were met.

            Affirmed.