Opinion
No. C9-01-660.
Filed October 2, 2001.
Appeal from the District Court, Anoka County, File No. J80053965.
Robert M.A. Johnson, Anoka County Attorney, Catherine McPherson, Assistant County Attorney, (for appellant)
Sherri D. Hawley, (for respondent)
Susan Dredge, Guardian ad Litem Services, (Guardian ad Litem)
PFC2 Charles L. Johnson, A Company, (Father of C.G.L.)
Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Anoka County appeals the district court's denial of a petition to terminate the parental rights of mother to C.G.L., C.R.L., and C.P.L. and to terminate the parental rights of father to C.R.L. and C.P.L. Because the undisputed evidence clearly and convincingly establishes that the parents are palpably unfit to parent these children now or in the reasonably foreseeable future; the district court's findings establish that reasonable efforts by the county have failed to correct the conditions that led to out-of-home placement, and the findings do not support the district court's conclusion that termination of parental rights is not in the best interests of the children, we reverse.
FACTS
Over the course of three generations, mother's family has been involved with Anoka County Child Protection (county) for instances of sexual abuse. Mother, age twenty, is the victim of extensive sexual abuse by family members, family friends, and other persons. Mother was first abused when she was two and a half years old and continued to be abused until she was sixteen years old. On May 27, 1998, when she was sixteen years old and residing in a treatment foster home, mother gave birth to C.G.L.
C.G.L.'s biological father also came from a family with a history of physical and sexual abuse. His parental rights have been terminated and are not at issue in this appeal.
Mother is diagnosed with post-traumatic-stress disorder and personality disorder with oppositional and passive-aggressive traits. Psychologist James Gilbertson, who reviewed mother's records and performed a psychological assessment of her in December 2000, testified that mother has a poor prognosis to manage her own life and the lives of her children. He described mother as bright, articulate, persuasive and cognitively intact, but emotionally very childlike. Gilbertson testified that mother has survived her extensive history of abuse by emotionally detaching herself from her life activities, making her unable, at this time, to appropriately assess risks to her children thereby placing them in danger. Gilbertson testified that it is possible that intensive treatment will be successful and that mother is capable of recognizing risk.
Father, age twenty, is also a victim of sexual, physical, and verbal abuse by family members and is a convicted child-sex abuser, having abused his two half-siblings, both under the age of sixteen, over a prolonged period of time. According to the director of father's sexual-offender treatment program, father's immediate shift from victim to perpetrator will make it more difficult for father to develop victim empathy.
Before father and mother married, father indicated to mother that he had sexually abused his half-siblings, however, mother did not believe him. They were married on May 6, 1999 and C.R.L. was born on November 1, 1999. When C.R.L. was approximately five months old, mother confronted father about the sexual abuse of his half-siblings and he made a more complete disclosure about that abuse. At mother's insistence, father disclosed the abuse to his family and eventually reported himself to authorities. Father has been convicted for the sexual offenses against his half-siblings and is on supervised probation, a condition of which prohibits his unsupervised contact with any children.
Shortly after father reported the abuse to the authorities, county met with mother regarding C.G.L. and C.R.L. At the time she met with county, mother was pregnant with C.P.L. and was living with father and an older male roommate who had been convicted of child-pornography offenses for taking pictures of nude children, including mother. At the meeting, mother refused to exclude father from the home, refused to recognize that her other roommate presented a danger to her children, and refused to cooperate with county for the protection of her children. County filed a petition with the district court alleging that C.G.L. and C.R.L. were in need of protection or services. The petition was tried on stipulated facts. The children were found to be in need of protection or services within the meaning of Minn. Stat. § 260C.007, subd. 4 because they resided with a perpetrator of domestic child abuse as defined in Minn. Stat. § 260C.007, subd. 25 and because they were without proper parental care because of the emotional, mental or physical disability, or state of immaturity of their parents. C.G.L. and C.R.L. were placed in foster care on March 27, 2000. A case plan was adopted and approved by the court and an amended case plan was approved on June 9, 2000.
C.P.L. was born on August 25, 2000, six weeks prior to her due date. She was hospitalized until August 31, 2000. A petition to adjudicate C.P.L. a child in need of protection or services was filed on August 29, 2000. Mother and father retained custody of C.P.L. until October 11, 2000, when she was removed from their care by court order because mother failed to attend counseling as required by her case plan, father failed to enter sex offender treatment as ordered by the court, and both failed to attend couple's therapy as required by their case plan.
Mother's case plan provided that she would work with a parent-skills worker, participate in a weekly parenting group, attend weekly individual therapy, follow the recommendations of her psychological evaluation, demonstrate an ability to make appropriate choices about who was safe for her children to be around, make and implement a detailed safety plan for the children, participate in the family component of father's sex offender treatment, keep scheduled appointments with social services, obtain and maintain safe and stable housing, and participate in couple's therapy with father.
Father's case plan provided that he would work with a parent-skills worker; follow all recommendations of the psycho-sexual assessment; complete a sex offender treatment program and aftercare; refrain from sexual, physical, and emotional abuse; participate in individual therapy; make all scheduled appointments with social services; maintain safe and stable housing for the children; follow all conditions of his probation; and participate in couple's therapy with mother.
Although mother's attendance at required services has been excellent since November, her progress has been inconsistent. According to her therapist, mother will require at least one additional year of intensive individual therapy with consistent application and progress to deal with the issues that make her unable to adequately judge safety issues for her children. Father has started sexual-offender treatment but, according to the program director, will require 18 to 24 months to complete the program, followed by aftercare. The program director testified that it is too early to judge what risk father poses to his children at this time and does not support contact with the children that is not professionally supervised.
Testimony established that although both parents are attached to the oldest child, C.G.L., he has an impaired attachment to them. He is frequently angry and rejecting of his parents. Mother is uncertain about her attachment to C.R.L. There is no evidence that the younger children are attached to either parent. C.G.L. exhibited sexual behavior, anger, sleeping and eating problems, fear of the out-of-doors, addiction to television, and lack of play skills when he entered foster care. Except for reappearance of sexual behaviors and a relapse in toilet training during unsupervised visitation with mother, C.G.L. has thrived in foster care, although he continues to exhibit anger. C.R.L. came to foster care with little muscle development and no interest in food. The foster mother testified that it appeared that she was used to being left in her car seat. C.R.L. quickly began to develop muscle control, interest in food and became more active in foster care. C.P.L. has not manifested any problems and is doing well in foster care. All three children are appropriately attached to the foster mother.
Mother twice placed C.G.L. in a potential, private, open adoption situation with friends of her father, but after the birth of her second child, decided against adoption for C.G.L.
On November 29, 2000, county filed a petition for termination of mother and father's parental rights alleging that (1) mother and father are palpably unfit to be parties to the parent-child relationship; (2) reasonable efforts have failed to correct the conditions leading to placement, and (3) the children were neglected and in foster care. After trial, the district court found that the county had failed to prove grounds for termination by clear and convincing evidence and that termination of parental rights is not in the best interest of the children. The district court dismissed the termination petition but concluded that all of the children remain in need of protection of the court and that remaining in foster care is in their best interests. This appeal followed.
DECISION
"Parental rights are terminated only for grave and weighty reasons." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). When a district court's findings in a termination of parental rights case are challenged, 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). The petitioner has the burden of proving by clear and convincing evidence that there are statutory grounds for termination of parental rights. In re Welfare of Clausen, 289 N.W.2d 153, 155 (Minn. 1980).
There is a presumption that it is ordinarily in the best interest of a child to be in the custody of a natural parent. Id. at 156. The district court must make clear and specific findings that conform to the statutory requirements for termination adjudications. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). In any action for the termination of parental rights, the paramount concern is for the best interests of the children. Minn. Stat. § 260C.301, subd. 7 (2000).
The test for determining whether parental rights should be terminated is whether the parent is presently able to assume responsibilities and not whether the parent has, from time to time, in the past, been derelict in parenting duties. Clausen, 289 N.W.2d at 156 (citing Petition of Linehad, 280 N.W.2d 29, 31 (Minn. 1979)). County sought termination of mother's and father's parental rights on three statutory grounds: (1) that mother and father are palpably unfit to be parties to the parent and child relationship because of a consistent pattern of specific conduct; (2) that following the placement of the children out of the home, reasonable efforts, under the court's direction, have failed to correct the conditions leading to the placement; and (3) that the children are neglected and in foster care. Minn. Stat. § 260C.301, subd.1(b)(4), (5) and (8) (2000). The existence of one of the statutory grounds for termination of parental rights is sufficient for an order to terminate parental rights. Minn. Stat. § 260C.301, subd. 1(b) (2000).
I. Palpably Unfit
A juvenile court may terminate the parental rights of a parent 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.
Minn. Stat. § 260C.301, subd.1(b)(4) (2000).
C.G.L., C.R.L. and C.P.L. are in foster care primarily because of their parents' inability to adequately evaluate the risk and protect the children from the abuse suffered by both parents and perpetrated by father on other victims. The record clearly demonstrates that both mother and father remain unable to evaluate such risks and have been consistently unable to provide a safe, stable, nurturing environment that is essential to the healthy development of these children. Mother and father have never demonstrated an ability to adequately meet their own physical needs. They have never obtained consistent, adequate employment and have never established the safe, stable residence contemplated by the case plan. Lack of adequate housing prevented visitation with the children in a home setting and left the parents in the role of "visitors" in artificial situations that did not promote parent-child attachment.
Both parents have consistently demonstrated an inability to appreciate the risk of abuse posed by father, other family members, and acquaintances. Although the district court correctly notes that mother is responsible for father having been held responsible for his sexual abuse crimes, the district court did not address the clear and convincing evidence that both parents consistently minimized any risk father poses to the children, other than by finding that the children cannot be returned to the parent's custody. The district court found that father and mother are willing to live apart during father's sexual-offender treatment, but they have never lived apart. Despite evidence of father's extreme dependence on mother, father testified that he could live successfully apart from her, so long as she was not involved with someone else. Testimony established that when mother contemplated leaving father he became suicidal and that, at this time, the parents have no plans to end their relationship.
Mother's plan at one point was to have father provide daycare for the children while she worked. She believed that as long as the children were sleeping, father presented no risk.
The children's social worker testified that mother and father lack the ability to work together with the children and questioned their ability to set limits for their children. The parents have consistently demonstrated a lack of respect for each other. Father testified openly about his feelings of anger toward most women, including his wife, mother and sister, and social workers. He testified about the vulgar and disrespectful terms in which he thinks about women and admitted that he sometimes verbalizes these terms to women. He exempted his daughters from these feelings, explaining that he does not feel threatened by them.
There was testimony that the consistently chaotic lifestyle of the parents will not permit the healthy development of the children. Despite targeted education about nutrition, the parents continued to bring sugary snacks and fast food for the children during visitation. The record amply documents the consistent patterns of behavior that make these parents palpably unfit to be parties to the parent-child relationship.
At trial, testimony revealed that the estimates of a year of intensive therapy for mother and 18 to 24 months of sexual-offender treatment for father were based on the parents not having parenting responsibilities during those periods and on each parent being fully committed to the therapeutic process. To date neither parent has demonstrated consistent progress in therapy. Mother discontinued therapy for over two months. Much of father's time in the sexual-offender program has been spent on his crises needs centered on housing, finances, and court hearings.
The district court recognized that the children have been out of the home far beyond the statutory permanency requirements. The record establishes that, even with a level of dedication and cooperation never seen in these parents, they will require many months of therapy and treatment to be able to care appropriately for the ongoing physical, mental, and emotional needs of these children. Given their history of lack of progress, the evidence clearly leads to the conclusion that these parents will not be capable of parenting for the reasonably foreseeable future. The child protection laws do not support keeping children in limbo for an indefinite time on the chance that their parents will one day become fit for reunification. The district court's own findings support only the conclusion that the parents are palpably unfit.
II. Reasonable Efforts Failed to Correct Problems Leading to Placement
Parental rights may be terminated if "following the child's placement out of the home, reasonable efforts, under the direction of court, have failed to correct the conditions leading to the child's placement." Minn. Stat. § 260C.301, subd. 1(b)(5). A presumption that reasonable efforts have failed arises in the case of a child under age eight if, at the time the petition is filed:
(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 case plan;
(ii) the court has approved a case plan * * *
(iii) conditions leading to the out-of-home placement have not been corrected. * * *
(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.
This clause does not prohibit the termination of parental rights prior to one year, or, in the case of a child under age eight, within six months after a child has been placed out of the home.
Minn. Stat. § 260C.301, subd.1(b)(5)(i)-(iv).
C.G.L., born on May 27, 1998, and C.R.L., born on November 1, 1999, have been in placement since March 27, 2000, and C.P.L., born on August 25, 2000, has been in placement since October 11, 2000. The termination of parental rights petition was filed on November 30, 2000, more than eight months after the out-of-home placement of C.G.L. and C.P.L. The order dismissing the petition was filed nearly a year after the placement of C.G.L and C.P.L. and approximately five months after placement of C.P.L. The district court found that court-approved case plans are in effect for both parents, that county's efforts to correct the conditions that led to placement are reasonable with regard to each parent, and that both parents are in compliance with the case plan. Nonetheless, the district court concluded that the children continue to be in need of protection or services and that continued placement out of the home is in the children's best interests. Neither parent contests these findings.
Many of the district court's "findings" are defective because they merely recite testimony that was presented at trial. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn.App. 1989) (stating district court's recitation of parties' claims "is not making true findings" because findings "must be affirmatively stated as findings of the court").
The district court found that mother did not comply with the case plan from September 13 — November 14, 2000, but that since then her cooperation, participation and attendance at interventions "have all improved." The district court found that depending on her level of defensiveness, mother will require at least one year of additional therapy to achieve the goal of being able to better ensure the safety of her children and be a good parent. The district court found that mother had never cared for all three of her children until she was given 20 hours of unsupervised visitation per week in January 2001 and that it was reasonable for her to have become overwhelmed and to have asked for a reduction of visitation time. The district court found that mother acted appropriately around the children during supervised visitation, tended to their needs and has not physically, sexually, or emotionally abused them.
The district court found that although father disobeyed a court order to enter sex-offender treatment on October 4, 2000, he began treatment on October 11, 2000 and has attended all sessions since that date and that father's treatment is expected to continue for 18 to 24 months. The court found that father has only attended three individual counseling sessions, but "his attendance, participation and cooperation in all other aspects of his case plan has improved over the last three months." The court found that father has not demonstrated physically, sexually, or emotionally abusive behavior toward the children despite testimony that on two occasions he engaged in "staring" at C.R.L. until she began screaming and on one occasion, which father described as part of "potty training," he held C.G.L.'s penis while C.G.L. urinated.
Competent testimony indicated that this behavior was inappropriate, even in the context of toilet training, given father's history.
The district court did not address substantial evidence in the record that, although the parents have attended required programs since November 2000, their progress toward solving the problems that led to the out-of-home placement has been minimal and they have failed to meet several of the goals outlined in the case plans such as identifying risks to the children, establishing stable housing and employment, and understanding the children's nutritional needs. Even if attendance is sufficient to support a conclusion of compliance with a case plan, by finding that the children remain in need of court services or protection and that continued out-of-home placement is in their best interest, the district court implicitly found that parent's compliance with the case plans has not resulted in correction of the conditions that led to the out-of-home placement of the children. The district court's findings constitute clear and convincing evidence that reasonable efforts have not, and will not, within the reasonable limits of permanency requirements, correct the problems that keep these children from being reunited with mother and father.
The district court concluded that termination of parental rights is not in the best interests of the children but made no findings to support this conclusion. None of the court's findings address the needs of the children for permanency or the fact that the timelines the court found necessary for the parents to be able to parent are far beyond the statutory timelines for permanency placement for the children. The court recognized that "the potential for danger is significant" but was "unwilling at this point to find that [mother and father] cannot be reunited with their children for the prolonged, indeterminate or permanent future," despite the findings about the length of time necessary for mother and father to complete necessary treatment and the conclusion that the children's best interests require continued out of home placement.
The district court's conclusion that "[t]here is not clear and convincing evidence * * * that reasonable efforts have failed to correct the conditions leading to the placement" of the children is contrary to the court's findings of fact, as is the conclusory statement that termination is not in the best interests of the children.
Because the evidence conclusively supports termination on two statutory grounds, we need not address whether the district court erred by finding that the children are not neglected and in foster care. Minn. Stat. § 260C.310, subd. 1(b) (2000) (requiring the presence of only one of the aforementioned statutory grounds to support the termination of parental rights).