Opinion
No. C4-01-386.
Filed January 29, 2002.
Appeal from the District Court, Kandiyohi County, File No. J40050174.
John E. Mack, Mack Daby, (for appellant mother)
Michael Thalberg, (for respondent J. E.)
Thomas A. Jones, (for guardian ad litem Rochelle Scheevel)
Boyd Beccue, Kandiyohi County Attorney, John L. Kallestad, Assistant County Attorney, (for respondent Kandiyohi County)
Bonnie Kleman, (for respondents J.E., D.E., and A.J.E.)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This appeal is from an order terminating appellant-mother H. E.'s parental rights to her four children based on neglect. Mother challenges the district court's findings that the county made reasonable efforts to correct the conditions leading to the termination petition and that termination was in the children's best interests. We affirm.
FACTS
Mother lived with her husband and their four children, J.E., age 14, J.E., age 11, D.E., age 9, and A.J.E., age 5. Kandiyohi County Family Services became involved with the family in March 1997 after an investigation revealed the condition of the family home to be extreme to the point of endangering the children. The home was dirty and in disarray. Bat feces were found in the home, and animal carcasses were found in the front yard. Family services found inadequate cleaning of the home and inadequate care and discipline of the children.
Lisa Strommer, an in-home family counselor, provided counseling services for mother and father twice a week for seven months in 1997. Strommer testified that the sessions ended because of lack of progress and because mother and father missed appointments. According to Kandiyohi County Family Services social worker Connie Rosen, mother did not follow through with the parenting skills that were recommended in 1997. Services were terminated due to inadequate progress in the conditions of the home and a failure to attend group parenting classes.
In 1998, Roger Kohls was assigned to mother through Heartland Community Action Agency to provide in-home services for the family. He met with the family about twice a week for two hours or more per appointment during most of 1998. No progress was made with regard to any of the goals that mother agreed to include in her services plan. Mother called to cancel appointments and, on occasion, hid from Kohls when he went to the house. In view of the absence of progress and the missed appointments, Kohls concluded that he was wasting his time and terminated services in December 1998.
Serena Robak, mother's probation officer, testified that in January 1999, mother was arrested for breaking into a school nurse's office and was ultimately convicted of third-degree burglary. Before the burglary charge was resolved, mother was arrested for driving while intoxicated (DWI) and held in jail. She pleaded guilty to the DWI charge and was sentenced to 45 days in jail.
Also in January 1999, family services returned to the home and found conditions had deteriorated. There was a sewer backup in the basement and broken windows in the upper level of the house. There were flies, insects, and bats in the house. Family services concluded that the house was filthy and unsanitary to the point of posing a danger to the children. On February 1, 1999, while mother was in jail, the children were removed from the home and placed in foster care.
On March 31, 1999, mother signed a parenting plan that contained the following objectives: (1) maintain a clean and safe household environment; (2) develop appropriate parenting skills; (3) parents must take responsibility for the household; (4) participate in parental education, parental-capacity evaluation, rule 25 psychological and psychiatric evaluations; and (5) follow through on all recommendations. Connie Rosen, mother's case manager, met with mother weekly. During those meetings, Rosen broke the parenting plan into weekly tasks for mother to accomplish. Rosen testified that even with additional assistance, mother was unable to meet the goals.
On a referral from Connie Rosen, mother met with Dr. Edmond E. Nadolny, Ph.D., three times between April 16, 1999, and May 6, 1999, for a parental-capability evaluation. Nadolny's prognosis was that reunification was possible. He characterized mother's situation as a "steep hill." Nadolny identified chemical dependency as mother's primary difficulty and noted that mother was "a very emotionally labile woman whose controls are indeed very brittle." Nadolny also noted that mother "does have a depressive disorder diagnosis and is taking antidepressant medication" and that she has borderline traits of a personality disorder. After the first visit, Nadolny consulted with Dr. Richard Kasper, M.D., to inform him about mother's unstable condition and was told that numerous medications had been tried on mother, and she was currently prescribed an antidepressant. According to Nadolny, mother's prognosis was, "at best, fair."
Mother was released from jail for the DWI in April 1999, and received inpatient treatment for chemical dependency from May 11, 1999, until August 9, 1999. She then stayed at a halfway house until December 1999. After that, she joined Alcoholics Anonymous and was required to meet twice a week. At the time of trial in January 2001, there were no reports that mother had failed to maintain her sobriety.
Lisa Strommer worked with mother again from November 1999 to July 2000. Strommer's services included repeated efforts to help structure and schedule individual time between mother and the children during visitation. Most of Strommer's sessions with mother focused on parenting skills. Strommer met with mother to discuss the previous visitation with the children and to help mother learn how to gain control and order with the children. Strommer testified that it took several months for mother to be able to follow a schedule during visitation with her children and mother seemed very confused while doing so and allowed the oldest child to take the parenting role. Strommer also testified that mother's follow-through on the issues discussed in therapy was poor. Strommer attempted to deal with mother's schedule and transportation problems by having sessions in mother's home and in the Woodland Center after mother's therapy sessions with Pam Dahl. By July 2000, mother had missed four appointments and was not returning Strommer's calls, and the sessions were terminated.
In June 1999, family services initiated an investigation of alleged sexual abuse of the three oldest children by father. A Kandiyohi County investigator interviewed the children. J.E. stated that her father and one of his friends sexually abused her. Mother was interviewed on July 15, 1999, and the investigator noted that she gave no reaction to the allegation that her husband was sexually abusing her daughter. Mother stated that she did not know, did not remember, or was drunk. The investigation concluded that mother maltreated J.E., and mother never challenged that determination. Father was charged criminally based on J.E.'s allegations.
On February 28, 2000, the county filed a petition to terminate mother's and father's parental rights. The criminal charges against father were dismissed on the condition that father agreed to terminate his parental rights, and father voluntarily terminated his parental rights.
Shortly after the petition was filed, mother began seeing Pam Dahl, a marriage-and-family therapist, once a week. Initially, mother attended the weekly sessions, but by August 2000, she began to miss appointments. Dahl testified that by August, there was little progress from the counseling, and she terminated her sessions with mother because mother failed to appear. In all, about 20 appointments were kept and 11 were missed before services were terminated. None of mother's issues were resolved. Dahl testified that mother's lack of progress might be due to her confusion rather than inability.
The children's foster parent testified that when the children arrived at the foster home, their behavior included eating from the garbage, defecating and urinating in clothing, licking the table and floor, blowing noses into shirts, and acting out sexually. Three of the children were diagnosed with attention deficit hyperactivity disorder (ADHD). After a year with the foster family, the children were doing significantly better although vigilant supervision of each child remained necessary. The ADHD children were regularly taking Ritalin and responding favorably. They were able to get up and get ready in the morning more independently than they had previously. One of the children came to the foster home with asthma, and after being in the cleaner environment, there was no need for the child to use a nebulizer. The foster parents testified that the children's behavior relapsed after visits or phone calls with mother.
Jessica Lindquist supervised visitation between the children and mother at Harmony Visitation Center. Mother continually broke the visitation rules by bringing the children inappropriate items that included gifts signed "From Mom and ?," which implied that the gifts were from mother and father, even though father had been ordered by the court to have no contact with the children. Mother also brought a picture of father. Mother was warned several times against bringing inappropriate items to the family visitation.
The district court terminated mother's parental rights. The court concluded that (1) mother is physically and financially able to provide her children with food, clothing, shelter, and development if she desired to do so; (2) mother neglected to provide her children with necessary education and other care necessary for physical, mental, and emotional health and development; (3) efforts by Kandiyohi County Family Services to correct conditions leading to the children being placed in foster care and the petition for termination were reasonable; (4) mother's demonstrated unwillingness to improve upon her parenting skills made reasonable efforts by Kandiyohi County Family Services to assist in this regard futile and therefore unreasonable; (5) mother is palpably unfit to be a party to the parent and child relationship; (6) reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination petition and to the children's placement in foster care; and (7) it is in the children's best interests that mother's parental rights be terminated.
DECISION 1. Neglect
"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) (citation omitted). On appeal from a termination of parental rights,
[t]he appellate court must determine whether the trial court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.
Id. (citation omitted). Considerable deference is due to the district court's decision because the district court is in a superior position to assess witness credibility. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).
In a termination proceeding, the child's best interests must always be the primary consideration. M.D.O., 462 N.W.2d at 375. There is a presumption that natural parents are suitable to be entrusted with the care of their children and that it is in the children's best interests to be in the natural parents' care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).
The party petitioning for termination must prove the existence of one or more of the statutory 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). The existence of a single statutory ground is sufficient to support a termination. In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn.App. 1984).
Minn. Stat. § 260C.301, subd. 1(b)(2) (2000), is one of the statutory grounds for termination that the district court determined existed. Under Minn. Stat. § 260C.301, subd. 1(b)(2), parental rights may be terminated if 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 mother neglected to provide her children with necessary education and other care necessary for physical, mental, and emotional health and development. Mother does not challenge this conclusion, but she does challenge the court's conclusion that efforts by Kandiyohi County Family Services to correct conditions leading to the petition for termination were reasonable.
Before terminating parental rights for neglect, the district court must find that the county has used reasonable efforts to provide rehabilitation or reunification services. Minn. Stat. § 260.012 (a), (c) (2000); In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996) ("it is clear that provision of reasonable efforts must be evaluated by the court in every case").
Whether efforts are "reasonable" requires consideration of the length of time the county has been involved with the family as well as the quality of effort given.
In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn.App. 1987) (citation omitted).
In addition to concluding that efforts by Kandiyohi County Family Services to correct conditions leading to the petition for termination were reasonable, the district court also concluded that mother's demonstrated unwillingness to improve upon her parenting skills made reasonable efforts by Kandiyohi County to assist in this regard futile and therefore unreasonable. In reaching these conclusions, the district court considered efforts made by the county since it first became involved with the family in 1997.
Mother contends that several of the efforts that the county made were not reasonable efforts at correcting the problems the county perceived. Mother argues first that giving her a list of parenting skills and then complaining when she did not follow them was not a reasonable effort by the county. But the county did not just give mother a list of parenting skills in 1997 as mother claims. An in-home family counselor provided counseling services for mother and father in 1997, but those services had little impact, and the counselor testified that the services ended because of lack of progress and because mother and father missed appointments. The district court also found that Kandiyohi County Family Services terminated services in 1997 due to inadequate progress in the conditions of the home and mother's and father's failure to attend group parenting classes.
With regard to this finding, mother argues that withdrawing services when conditions did not immediately improve was not an effort at all, much less a reasonable effort. But services were not withdrawn when conditions did not immediately improve. The in-home family counselor testified that she provided services for seven months, and the in-home parenting services stopped in 1998. Also, the court's finding specifically indicates that services were stopped because mother and father failed to participate, not because conditions did not immediately improve.
Mother next argues that the district court's finding that she signed a parenting plan that had been thoroughly discussed with her before she signed it could not be an indication that the county services were reasonable because the court had just noted that she had substantial learning and mental disabilities that made it difficult for her to understand the plan. Similarly, mother argues that the county effort to assist her by breaking down the reunification plan into shorter "task plans" was an explanation of orders, rather than assistance. But it is apparent that understanding what was in the plans would assist mother's efforts to follow the plans, and the fact that the county effort to explain the plans might not succeed does not mean that the efforts were not reasonable. Furthermore, the county did not break down the reunification plan into shorter "task plans" just to explain the plan to mother; it created the task plans because they had rather simple goals that could be accomplished more easily, which would assist mother in following the plan.
Mother also argues that the county did not make a reasonable effort to assist her in obtaining suitable employment and alternative housing. The district court's findings of fact do not state what effort the county made to help mother obtain housing and employment, but the court stated in its memorandum:
Despite efforts to assist in finding meaningful employment, [mother] failed to do so. [Mother] has also failed to obtain housing despite efforts to assist, and instead remains on a farm site provided by [father].
This statement is supported by evidence in the record that Connie Rosen, mother's social worker, discussed with mother steps to be taken to rent housing and to apply for a job. But the statement does not indicate that the county's efforts were reasonable. However, because the district court's decision to terminate mother's parental rights was not based only on her failure to obtain housing or employment, the absence of a finding that the county's efforts were reasonable is not a sufficient basis for us to reverse the district court's decision.
Under Minn. Stat. § 260C.301, subd. 1(b)(2), parental rights can be terminated if a parent fails to correct the conditions that formed the basis of the termination petition. This does not mean that parental rights cannot be terminated if a parent corrects any of the conditions that formed the basis of the petition; it means that rights can be terminated if a parent fails to correct any of the conditions that formed the basis of the petition. In addition to stating that mother failed to obtain housing and meaningful employment, the district court stated:
[Mother's] demonstrated unwillingness to improve upon her parenting skills has made reasonable efforts by Kandiyohi Family Services to assist in this regard futile. As a result, conditions that precipitated the children's removal on February 1st of 1999 have not been corrected.
Therefore, even if mother had obtained housing and employment, she still failed to improve her parenting skills, and that failure provided a sufficient basis for the district court's decision to terminate mother's parental rights.
Mother argues finally that the county's efforts could not have been reasonable because of the short period of time between mother's release from the halfway house in December 1999 and the preparation of her reunification plan on January 13, 2000, and the short period between the date of the plan and the filing of the petition on February 28, 2000. Mother contends that the county could not have made a reasonable effort to rehabilitate the parent and reunite the family in such a short period of time. But mother's argument ignores the fact that the county began providing rehabilitation services in 1997. Furthermore, the county continued to provide rehabilitation services to mother after the petition was filed. Pam Dahl, a marriage-and-family therapist, began meeting with mother shortly after the petition was filed, and Lisa Strommer met with mother after her visitations with the children at Harmony Visitation Center to attempt to counsel mother about positive communication with the children and to improve mother's parenting skills. Because "the evidence relating to termination must address conditions that exist at the time of the hearing," the district court properly considered evidence of services provided after the termination petition was filed. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).
We find no error in the district court's conclusion that efforts by Kandiyohi County Family Services to correct conditions leading to the petition for termination were reasonable or that mother's demonstrated unwillingness to improve upon her parenting skills made reasonable efforts by Kandiyohi County to assist in this regard futile and therefore unreasonable.
Because we conclude that the trial court did not err when it concluded that mother's parental rights should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(2), we will not consider the trial court's other statutory bases for the termination.
2. Best Interests of the Children
The district court concluded that it was in the children's best interests to terminate mother's parental rights. Mother argues that in making this determination, the court did not consider the children's wishes.
The choice of children old enough to express a preference about their custodial arrangement has always received significant weight in examining a child's best interests.
In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn.App. 1996) (citations omitted).
Rochelle Scheevel, the guardian ad litem, interviewed the children and asked them if they wanted to live with their mother again. The oldest child, age 14, stated that she was not interested in going back to live with her mother. The two boys, ages 9 and 11, stated that they wanted to go back to the farm because there were no rules there. The youngest child, age five, wanted to go back to the farm because of the dog. Scheevel testified that she did not believe that the children were old enough to form a well-considered opinion as to what is in their best interests.
At 14, the oldest child might have been old enough to form a well-considered opinion as to her best interests, but she was not interested in going back to live with her mother. And the preferences actually expressed by the other children demonstrate that they were not mature enough to express a preference that deserved weight in determining their best interests. See id. at 75-76 (considering children's intellect and maturity in deciding whether district court assigned sufficient weight to their preferences).
3. Admission of Investigator's Report
Mother argues that the district court erred when it permitted the introduction of a police report into evidence. The district court, however, did not admit a police report into evidence. The report that mother contends was improperly admitted is a child-protection investigation report. The author of the report testified that the contents of the report included information that had been obtained from other persons. The report was offered and received under Minn.R.Evid. 803(8) (hearsay-rule exclusion does not include public records and reports).
Mother argues that the report was not admissible under rule 803(8) because, when she objected, the county furnished no evidence that the declarants who provided information used in the report were available as witnesses. Mother's argument appears to be based on a misunderstanding of the first paragraph in Minn.R.Evid. 803, which states, "The following are not excluded by the hearsay rule, even though the declarant is available as a witness."
Mother reads this language to mean that the hearsay exceptions in rule 803 apply only when the declarant is available. But the committee comments to rule 803 state:
The exceptions to the hearsay rule of exclusion (rule 802) are separated into two categories:
1. those exceptions which are not affected by the availability or unavailability of the declarant (rule 803), and
2. those exceptions which require that the declarant be unavailable before the hearsay statement might be admissible (rule 804).
Because the exceptions in rule 803 are not affected by the availability or unavailability of the declarant, it was not necessary for the county to present evidence that the declarants who provided information used in the report were available as witnesses.