In the Matter of the Children of: S.P. and S.P., Parents/Legal Guardians.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-775 A04-870

 

 

In the Matter of the Children of:

S.P. and S.P., Parents/Legal Guardians.

 

 

Filed December 6, 2004

Affirmed Willis, Judge

 

Brown County District Court

File No. J3-04-50002

 

 

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

 

Philip J. Elbert, 100 Voyager Bank Building, 107 N. Second Street, Mankato, MN  56001 (for appellant S.P.)

 

James R. Olson, Brown County Attorney, John L. Yost, Assistant County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN  56073-0428 (for respondent county)

 

Kelly Weisensel, Guardian ad Litem, Brown County Courthouse, P.O. Box 248, New Ulm, MN  56073-0248 (guardian ad litem)

 

Nancy Bowman, 816 West St. Germaine, Suite 410, St. Cloud, MN  56301 (for intervenors)

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In a consolidated appeal from the termination of parental rights of both parents, appellant-mother argues that the district court misapplied the presumption that reasonable efforts had failed to correct the conditions leading to out-of-home placement of her children.  Appellant-father argues that the record does not support the district court's conclusion that father had presumptively abandoned his children.  Both parents argue that the district court failed to make sufficient findings regarding the best interests of the children.  Because the record supports the district court's findings and because the findings address the proper statutory criteria, the district court did not clearly err.  We affirm.

FACTS

Appellants S.P. (mother) and S.P. (father) met in 1997.  Not long thereafter, father introduced mother to methamphetamine, and father provided them both with the drug.  In 1998, mother and father married and had their first child.  While mother refrained from using methamphetamine during her pregnancy, she resumed her use soon after giving birth.  In the three following years, the couple had two more children.  Mother used methamphetamine during these subsequent pregnancies.

Father's extensive drug use and violent behavior led mother to temporarily separate from and obtain a restraining order against him.  He thereafter also became increasingly absent from the family.  Brown County Family Services (the county) filed a CHIPS petition in June 2002.  The court adjudicated the children CHIPS.  Mother signed a court-ordered out-of-home placement plan, and on September 13, 2002, the county removed the children from mother's care and placed them with foster parents.  A county social worker assessed mother as chemically dependent and recommended treatment programs.  Mother then entered treatment and completed a 21-day program.  Following treatment, mother entered a halfway house and continued in extended-care rehabilitation programs, including counseling, parenting classes, and education and employment services.  She completed the extended-care program in January 2003, and the county returned the children to her care on January 15.  County social workers continued to work with mother on her dependency issues and parenting skills.  After the children were returned to mother, father visited them monthly and provided occasional financial support for the children. 

In the summer of 2003, mother relapsed, and a county social worker again assessed her as in need of chemical-dependency treatment.  On June 24, the county once more removed the children and placed them with the same foster parents.  The county again recommended rehabilitation options, and mother entered treatment a second time.  County social workers thereafter continued to work closely with mother, referring her to various education, counseling, employment, legal, and daycare services.  The foster parents provided mother with a vehicle so that she could use these services and visit the children.  The children have been in out-of-home placement since June 2003.

In the fall of 2003, mother again relapsed and began spending time with men involved with illegal drugs and other criminal activity.  The men supplied her with methamphetamine and often stayed at her apartment.  One man assaulted an ex-girlfriend of his with a knife in the parking lot of mother's apartment.  Police executed a warrant to search mother's apartment and found the knife used in the assault, along with drug paraphernalia.  In January 2004, the county filed a petition seeking to terminate the parental rights of both mother and father. 

By the time the county filed the TPR petition, father had become increasingly disinterested and almost entirely absent.  In September 2003, he had told a county social worker that he wanted nothing to do with the children, the county's services, or any of the child-protection proceedings.  He often cancelled his scheduled visits with the children and failed to pay child support.  County social workers were rarely able to contact him either by telephone or by mail.  At one point, the county contacted father's sister, who was unable to provide information regarding his whereabouts.  The county had to serve father by publication with notice of the TPR petition, and he did not respond.  In February 2004, he was arrested and subsequently charged with manufacturing methamphetamine.  While he was in custody, father was served personally with the TPR petition.  Since his incarceration, his contact with the children has consisted of two letters written from jail.  At the TPR hearing in March, he waived further appearance after the first day of proceedings.

Shortly before the TPR hearing, a county social worker again assessed mother as in need of chemical-dependency treatment, recommended programs, and mother entered treatment a third time.  The program director testified that mother will likely require extensive rehabilitative efforts. 

            At the close of the TPR hearing, the district court terminated mother's parental rights, finding that the county had presented clear and convincing evidence that reasonable efforts to correct the conditions leading to the out-of-home placement had failed.  The district court also terminated father's parental rights based on its finding that the county had presented clear and convincing evidence that he had abandoned the children.  This appeal follows.

D E C I S I O N

A district court may terminate parental rights on the basis of one or more of the nine grounds listed in Minn. Stat. § 260C.301, subd. 1(b) (2002).  One ground is sufficient, but the primary consideration in all TPR proceedings is the best interests of the child.  Id., subd. 7.  The TPR petitioner must prove one or more of the grounds by clear and convincing evidence.  In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).  Courts are required to make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). 

On appeal from a termination of parental rights, "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) (citation omitted).  On review, "[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) (citation omitted).  This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

I.

The county sought to terminate mother's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5), which requires a failure of reasonable efforts to correct the conditions leading to the children's out-of-home placement.  Under Minn. Stat. § 260C.301, subd. 1(b)(5), a presumption that reasonable efforts have failed arises if, among other things,

(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;

 

. . . .

 

(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. § 260C.301, subd. 1(b)(5).  Here, the district court applied the presumption of failed reasonable efforts allowed by Minn. Stat. § 260C.301, subd. 1(b)(5), and terminated mother's parental rights.

In challenging the application of the presumption, mother reads subdivision 1(b)(5)(i) as consisting of two mutually exclusive parts: a first part relating only to children age eight or older for whom a presumption can arise if they have spent 12 of the preceding 22 months in out-of-home placement, and a second part relating to children under age eight, for whom a presumption can arise after six months of out-of-home placement, unless the parent has maintained regular contact with the children and has complied with the placement plan.  Because the children here are under age eight and because the district court found that she had both maintained regular contact and complied with "all requests and recommendations" of the county, mother argues that Minn. Stat. § 260C.301, subd. 1(b)(5)(i), has not been met and that the presumption, therefore, cannot arise.

Mother's argument is one of statutory interpretation, and we address it de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  "When interpreting a statute, we first look to see whether the statute's language, on its face, is clear or ambiguous.  A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation."  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (citation and quotation marks omitted).  If a statute, construed according to ordinary rules of grammar, is unambiguous, a court may not engage in any further statutory construction and must apply its plain meaning.  State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996).  Child-protection statutes, in particular, "shall be liberally construed to carry out [their] purposes."  Minn. Stat. § 260C.001, subd. 4 (2002). 

We reject mother's argument.  The first part of Minn. Stat. § 260C.301, subd. 1(b)(5)(i), states that Minn. Stat. § 260C.301, subd. 1(b)(5)(i), is satisfied when "a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months."  (Emphasis added.)  For purposes of Chapter 260C, "child" means any "individual under 18 years of age."  Minn. Stat. § 260C.007, subd. 4 (2002).  And nothing in the language of the first part of Minn. Stat. § 260C.301, subd. 1(b)(5)(i), suggests that "child" has been redefined for purposes of that provision to refer only to persons age eight and older.  Thus, even when a parent with children under age eight has maintained contact with those children and complied with a placement plan, there remains a cumulative limit of 12 months of out-of-home placement in a 22-month period, and if the conditions leading to out-of-home placement are not corrected within that time, Minn. Stat. § 260C.301, subd. 1(b)(5)(i), is satisfied.  Under the second part of that provision, however, the limit may be as little as six months in the absence of parental contact or compliance with the placement plan.  Here, because the children had been in foster care for 13 of the 19 months preceding the hearing, the plain meaning of the first part of Minn. Stat. § 260C.301, subd. 1(b)(5)(i), is satisfied and therefore Minn. Stat. § 260C.301, subd. 1(b)(5)(i), is satisfied, regardless of the children's age and regardless of mother's contact with them and her compliance with the placement plan. 

In the second part of her challenge to the district court's application of the presumption allowed by Minn. Stat. § 260C.301, subd. 1(b)(5), mother reads Minn. Stat. § 260C.301, subd. 1(b)(5)(iii), as consisting of a specific presumption that she argues applies to subdivision 1(b)(5) generally.  Again citing the finding that she complied with all of the county's requests and recommendations, mother argues that subdivision 1(b)(5)(iii) has not been satisfied and hence that the general presumption of subdivision 1(b)(5) does not arise. 

This, also, is an issue of statutory interpretation, we review it de novo, and we reject it for two reasons.  First, mother misreads the statute.  There are two parts to Minn. Stat. § 260C.301, subd. 1(b)(5)(iii):  one stating that Minn. Stat. § 260C.301, subd. 1(b)(5)(iii), is satisfied if the conditions leading to out-of-home placement have not been corrected, and a second creating a presumption that the conditions leading to out-of-home placement have not been corrected if the parent has "not substantially complied with the court's orders and a reasonable case plan."  Thus, (a) Minn. Stat. § 260C.301, subd. 1(b)(5)(iii), creates a presumption within a presumption--it identifies circumstances creating a presumption that the third element of the presumption allowed by Minn. Stat. § 260C.301, subd. 1(b)(5), is satisfied; and (b) the fact that the presumption that the third element of the Minn. Stat. § 260C.301, subd. 1(b)(5), is not satisfied, does not mean that the third element of the statute cannot be satisfied.  Alternatively stated, Minn. Stat. § 260C.301, subd. 1(b)(5)(iii), can be satisfied without satisfaction of the presumption therein.  And this is what the district court did here:  it did not apply the presumption in Minn. Stat. § 260C.301, subd. 1(b)(5)(iii); it simply found that the conditions leading to the children's out-of-home placement had not been corrected. 

The second reason we reject mother's second challenge to the district court's application of the presumption allowed by Minn. Stat. § 260C.301, subd. 1(b)(5), is that her reliance on the finding that she complied with "all requests and recommendations" of the county is too narrow an argument.  The primary condition leading to the out-of-home placement of the children was mother's chemical dependency and its effect on her ability to care for her children.  While she has, as directed, entered and completed two treatment programs, the point of the chemical-dependency-related directives and services is to assist mother in becoming chemical-free and maintaining sufficient sobriety to allow her to care for her children.  But mother relapsed after completing both treatment programs, she has associated with men involved in criminal activity in order to facilitate her drug use, and while she has entered a third treatment program, the testimony of the program director suggests that mother continues to struggle with addiction and her recovery is uncertain.  Thus, mother has not attained the sobriety that the chemical-dependency-related directives were designed to achieve and that is necessary for her to be able to consistently care for her children.  The district court did not err in its application of the statutory presumption or by concluding that reasonable efforts to correct the conditions leading to the children's out-of-home placement had failed.

II.

The county sought to terminate father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(1), which allows a court to terminate the parental rights of a person who abandons his children.  Father argues that the district court clearly erred by its application of the statutory presumption that he abandoned his children.  "Abandonment is presumed when the parent has had no contact with the child on a regular basis and not demonstrated consistent interest in the child's well-being for six months and the social services agency has made reasonable efforts to facilitate contact . . . ."  Id., subd. 2(a)(1).  Father claims that the district court should not have included the months between the filing of the TPR petition and the hearing in its analysis.  He argues that because he demonstrated consistent interest for the six months preceding September 2003 and because there had only been a three and one-half month period of no contact between that date and the date on which the county filed the petition, the statutory presumption of abandonment did not arise.  Nothing in the language of the statute suggests the reading that father proposes.  In fact, in TPR proceedings, courts "examine conditions as they exist at, and up to, the time of the termination hearing . . . ."  Matter of Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn. App. 1985).

The district court made specific findings regarding the presumption that father abandoned the children, finding that father had no regular contact with and had shown no consistent interest in the children during the six months preceding the termination hearing.  The court also found that the county had made reasonable efforts to facilitate contact between father and the children.

There is sufficient evidence to support the district court's findings.  At the hearing, the county established that father's recent contact with the children has consisted of two letters written from jail; that he often cancelled or rescheduled visits with the children; that he failed to pay child support; that father himself had said that he wanted nothing to do with the children, the county's services, or any of the child-protection proceedings; and that after the first day of proceedings, he waived further appearance at the TPR hearing.  The evidence also established that the county made extensive, but futile, efforts to contact father by telephone and mail, and through his sister. 

Because there is sufficient evidence to support the district court's findings, the court did not err by concluding that father abandoned the children.

III.

Both parents argue that the district court did not adequately explain its conclusion that termination of the parents' parental rights was in the best interests of the children.  Mother argues that the district court failed to make sufficient findings addressing the "best interests" factors listed in Minn. Stat. § 260C.212, subd. 2(b) (2002), and Minn. R. Juv. Protect. P. 41.05, subd. 1(c), to support its conclusion.  See In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn. App. 1996) (stating order terminating parental rights "must explain the district court's rationale for concluding why the termination is in the best interests of the children").  There are two problems with this argument:  first, the statute and rule that mother cites address a child's placement, rather than whether to terminate parental rights.  See Minn. Stat. § 260C.212, subd. 2(a), (b) (2002) (requiring individualized determinations of child's needs and how the placement selected for that child will serve those needs, and listing factors to be considered in determining child's needs); Minn. R. Juv. Protect. P. 41.01 (requiring disposition hearing after child is adjudicated in need of protection or services); Minn. R. Juv. Protect. P. 41.05, subd. 1(c) (listing factors to be considered in determining needs of child whose disposition is out-of-home placement). 

            Second, the district court did explain its rationale for concluding that it was in the children's best interests to terminate parental rights.  When addressing whether termination of parental rights is in a child's best interests, the district court is to consider 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).  While the district court's findings do not explicitly address the R.T.B. factors, the district court's explanation of why it is in the children's best interests to terminate parental rights shows that the district court did consider those factors. 

Regarding father, the district court found that his life "appears very unstable," that he "appears to be involved to a significant degree in the manufacture of controlled substances," that "[t]here was domestic violence between [father] and [mother] and children when he was living with the family," and that father "has demonstrated very little consistent interest in the children or their welfare."  That father has had "very little consistent interest in the children or their welfare" shows that he lacks any inclination to preserve his status as a parent.  Additionally, a child has an interest in the stability of his or her home environment and health.  See In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).  The interests in stability and health are not advanced by a lack of general stability, domestic violence, and the manufacture and use of controlled substances.  And the children's best interests outweigh father's interest in preserving his parental relationship with them.  See Minn. Stat. § 260C.301, subd. 7 (stating where interests of parent and child conflict, "the interests of the child are paramount").  The district court's findings adequately explain why it concluded that it was in the children's best interests to terminate father's parental rights.

            Regarding mother, the district court noted mother's "long-standing chemical dependency problem," made findings detailing mother's completion of two chemical dependency treatment programs and her subsequent relapses, her continued association with chemical-using men whose presence is contrary to the children's best interests, and mother's "hope" that her current third enrollment in a third chemical-dependency treatment program would allow her to "achieve lasting sobriety."  Implicitly balancing mother's interest in preserving her parental relationship with the children against the children's competing interests, the district court stated that "it is not in the children's best interests to require that a permanent placement continue to be put off until [mother] is finally able to overcome her chemical dependency problem at some unknown future date, if indeed she is ever able to achieve lasting sobriety."  These findings adequately explain how and why the district court found it to be in the best interests of the children to terminate mother's parental rights. 

            Because the district court's failure to make findings explicitly addressing the R.T.B. best-interests analysis is offset by the findings the district court did make, any error in not making the R.T.B. findings is harmless.  See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error).  Moreover, a thorough review of the record shows that it contains clear and convincing evidence supporting the findings that the district court did make.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings" and that its "duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"); Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 & n.1 (Minn. App. 2000) (applying Wilson in dissolution case).  Therefore, we affirm the district court's determinations that it was in the children's best interests to terminate the parental rights of mother and father.  

Affirmed.