Opinion
A21-0629
11-01-2021
In the MATTER OF the WELFARE OF the CHILD OF: J.H., Parent.
Zachary H. Johnson, Thomason, Swanson & Zahn PLLC, Park Rapids, Minnesota (for appellant father J.H.) Keith Ellison, Attorney General, St. Paul, Minnesota; and Benjamin T. Lindstrom, Cass County Attorney, Jon P. Eclov, Assistant County Attorney, Walker, Minnesota (for respondent Cass County Health, Human, and Veteran Services) Kathleen Barta, Brainerd, Minnesota (guardian ad litem)
Zachary H. Johnson, Thomason, Swanson & Zahn PLLC, Park Rapids, Minnesota (for appellant father J.H.)
Keith Ellison, Attorney General, St. Paul, Minnesota; and Benjamin T. Lindstrom, Cass County Attorney, Jon P. Eclov, Assistant County Attorney, Walker, Minnesota (for respondent Cass County Health, Human, and Veteran Services)
Kathleen Barta, Brainerd, Minnesota (guardian ad litem)
Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Jesson, Judge.
JESSON, Judge After the district court extended appellant-father J.H.’s time to work toward reunification with his child—and shortly before a termination-of-parental-rights trial—father began to regularly visit the child and work diligently towards sobriety. Father now challenges the district court's termination of his parental rights to the child. He argues that the district court erred by determining that (1) the county made reasonable efforts to reunite the family, (2) three statutory grounds for termination were met, and (3) termination is in the child's best interests. He also asserts that his procedural-due-process rights were violated when the district court failed to provide additional procedural safeguards during the COVID-19 pandemic. We affirm.
FACTS
In this sad case, the facts are undisputed. Father and mother (who never married) are the parents of C.S., who was born in August 2019. When C.S. was born, he tested positive for methamphetamine. Respondent Cass County Health, Human, and Veteran Services (the county) removed him from mother's custody. After the district court adjudicated C.S. a child in need of protection or services, the county filed a petition to terminate mother's parental rights, which the district court later granted. A month after father signed a recognition of parentage, the district court placed C.S. with father under the county's supervision. The goals of the resulting case plan were simple: father would ensure safety and well-being for C.S. and participate in parenting classes.
Matters started smoothly. Father cooperated with his social worker, provided for C.S.’s needs, and started parenting classes. But then father tested positive for methamphetamine. The county sought custody of C.S. The district court, however, ordered that if father tested negative for methamphetamine, he could maintain custody of C.S. But if he tested positive, the county would take custody. Father tested negative and so retained custody of C.S. In the meantime, the county updated father's case plan to add the goal of addressing father's drug use.
Father's negative testing was short lived. He continued to test positive for methamphetamine and other substances. As a result, the county removed C.S. from father's home in early 2020, after the baby had spent almost four months in father's care. Father's Treatment and Visitation Efforts in 2020
A second social worker took over father's case and updated his case plan. Father complied with some of that updated plan. He completed chemical-dependency and psychological assessments, participated in group chemical-dependency treatment sessions and some individual treatment sessions, and attended supervised visits with C.S. But this pattern changed with the onset of the COVID-19 pandemic, which made in-person treatment and visitation impossible beginning in mid-March 2020. Father then failed to consistently attend virtual chemical-dependency treatment, did not comply with random drug testing, and declined virtual visitation with C.S.
The goals of father's updated case plan included that he (1) demonstrate sobriety and complete outpatient treatment; (2) provide basic necessities for himself and C.S.; (3) understand the importance of stable mental health as it relates to parenting, including completing a diagnostic assessment and following its recommendations; (4) show parenting skills, including completing a parenting assessment; and (5) cooperate with the county.
Because father declined virtual visitation, he had no contact with C.S. from March 18, 2020 until around July 9, 2020, a period of just under four months. When in-person visitation resumed in July 2020, father visited C.S. only twice in July and August due to his schedule. And father had no visits with C.S. from September to mid-December 2020, due to C.S.’s foster parents testing positive for COVID-19, father's schedule and positive drug tests, and father's failure to respond to visitation offers.
During this time period, the district court, upon the county's recommendation, granted an extension of the permanency timelines.
Further, although father was initially offered unsupervised visits, he tested positive for methamphetamine in summer 2020, so the two visits he had were supervised.
One month after in-person visitation became available, in-person chemical dependency treatment also resumed in August 2020. But father missed two sessions and was then discharged from the program. The discharge summary stated that father was unamenable to further interventions. The second social worker tried to get father back into treatment, but he refused. From October to December 2020, father inconsistently complied with the random urinalyses program and tested positive for methamphetamine at least once. Additionally, in November, father at the last minute told his social worker that he could not attend the parenting capacity evaluation scheduled for him. And although he had requested a visit with C.S. around Christmas, he later refused visitation during the week of Christmas. Father's last reported methamphetamine use was December 25.
County Files Petition to Terminate Father's Parental Rights
After the county informed the district court and father that it would move forward with a termination-of-parental-rights petition, the district court relieved the county of making reasonable efforts toward reunification. But it stated that the county should nevertheless help father if he asked for services. The county then filed a petition to terminate father's parental rights on January 15, 2021. By that time, C.S. had been out of father's care for 374 days. But after the county filed its petition, father's efforts toward reunification changed. At father's request, the county provided a parenting capacity evaluation in February 2021. He voluntarily resumed chemical dependency treatment, and his provider noted that his prognosis was "more promising than [it] was the first time around." And he consistently tested negative for methamphetamine and started a faith-based recovery program. Although visits had been suspended when the county decided to file its termination petition, father was able to resume visitation with C.S., having five visits in February.
Soon thereafter, a third social worker took over the case.
Visits were shortened because father failed to follow C.S.’s routines and C.S. had behavioral issues after visitation.
Termination Trial
Nevertheless, the district court held a termination-of-parental-rights trial on March 22 and 26, 2021. The county called seven witnesses: the three social workers, the parenting capacity evaluator, the guardian ad litem, the drug screen director, and the visitation coordinator. Father testified and called his chemical dependency treatment provider as a witness.
Two of the social workers, the parenting capacity evaluator, and the guardian ad litem were asked whether they recommended that the district court terminate father's parental rights. Each recommended termination. Their reasoning was similar: father lacked stability, sobriety, and consistent contact with C.S. throughout the county's work with him. The third social worker also noted that father did not seem sensitive to C.S.’s needs during visitation, which contributed to her recommendation. The guardian ad litem added that C.S. has special needs because of his early exposure to methamphetamine. In addition to concerns about father's inconsistency, she supported termination of father's parental rights because father failed to address his mental health, C.S. will need significant attention, C.S. has formed bonds with his foster parents, and permanency for C.S. should not be further delayed.
The county's witnesses also testified about father's compliance with his case plan, noting that his participation was inconsistent. The drug screen director and visitation coordinator described their efforts to coordinate testing and visitation for father, including his unavailability and lack of engagement particularly from September to December 2020.
Father's chemical dependency treatment provider explained that father's motivation waxed and waned during his first attempt at treatment, but that father, on his own initiative, reenrolled in treatment in 2021 and had a better prognosis.
Finally, father testified that he has a stable job and was able to coordinate care for C.S. while C.S. was in his custody. He admitted his substance abuse but said that he did not use in C.S.’s presence or at the home. He stated that in-person group treatment sessions helped him and that he had no positive drug tests while engaging in in-person treatment. But he asserted that virtual treatment was less effective. He acknowledged using methamphetamine again because he felt discouraged by his failure to complete treatment. But he declared that he last used methamphetamine on December 25, 2020 and after that "decided to make a change."
With regard to visitation, father acknowledged that the frequency of his visits varied and testified about his reasons for declining virtual visitation during the initial months of the pandemic. Regarding visitation (or lack thereof) from September to December 2020, he noted that there were two periods where visitation was suspended due to COVID-19, but that he had also relapsed during this period. District Court's Order Terminating Father's Parental Rights
In a detailed order, the district court adopted the parenting capacity evaluator's findings from her report, in which the evaluator stated that father appeared to lack empathy for how his behavior harmed C.S. and that father did not appear to try to make the changes necessary until a "last ditch effort" after the termination petition was filed. And the district court heavily relied on the guardian ad litem's testimony. The court determined that the county proved by clear and convincing evidence that (1) father has neglected to comply with his parental duties, (2) reasonable efforts have failed to correct the conditions leading to C.S.’s placement outside father's home, and (3) C.S. is neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2020). Although it noted that father "loves [C.S.] very much," the court concluded that it is in C.S.’s best interests to terminate father's parental rights and that the county made reasonable efforts to reunite the family. It therefore granted the county's petition to terminate father's parental rights. Father appeals.
ISSUES
I. Did the district court clearly err by finding that the county made reasonable efforts toward reunification?
II. Did the district court abuse its discretion by determining that a statutory ground exists for terminating father's parental rights?
III. Did the district court abuse its discretion by determining that terminating father's parental rights is in the best interests of the child?
IV. Were father's procedural-due-process rights violated by the procedures used in this case?
ANALYSIS
A district court may terminate parental rights if (1) at least one statutory ground for termination is supported by clear and convincing evidence, (2) the county made reasonable efforts to reunite the family, and (3) termination is in the child's best interests. In re Welfare of Children of S.E.P. , 744 N.W.2d 381, 385 (Minn. 2008) ; Minn. Stat. § 260C.301, subd. 1(b) (setting out statutory grounds for termination). In reviewing the district court's order terminating parental rights, we review the underlying findings of fact for clear error. S.E.P. , 744 N.W.2d at 385, 387. But we review the district court's determinations of whether a statutory ground for termination exists and whether termination is in the child's best interests for an abuse of discretion. In re Welfare of Children of J.R.B. , 805 N.W.2d 895, 901, 905 (Minn. App. 2011), rev. denied (Minn. Jan. 6, 2012). And we review the district court's ultimate decision whether to terminate parental rights for an abuse of discretion. In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 87 (Minn. App. 2012). With these standards of review in mind, we turn to address the issues father raises on appeal.
I. The district court did not clearly err by finding that the county made reasonable efforts toward reunification.
Father argues that the district court erred by finding that the county made reasonable efforts to reunify the family. Specifically, he contends that the county made inconsistent efforts, delayed updating father's case plan, and should have offered a parenting capacity examination sooner. He also asserts that the pandemic detracted from the reasonableness of the county's efforts.
We begin our analysis of these claims with the definition of "reasonable efforts." When reasonable efforts are required, the district court must consider whether the services offered 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) (2020). The district court must also consider how long the county was involved and the quality of its efforts. In re Welfare of Child of A.M.C. , 920 N.W.2d 648, 655 (Minn. App. 2018). But what constitutes "reasonable efforts" depends on the facts of each case. Id. at 657. Again, we review that factual determination for clear error. S.E.P. , 744 N.W.2d at 386-87 (indicating that we review the district court's finding whether the county made reasonable efforts for clear error).
The Minnesota Supreme Court recently clarified the clear-error standard, noting that it applies across many contexts. In re Civil Commitment of Kenney , 963 N.W.2d 214, 221 (Minn. 2021). In applying the clear-error standard, we view the evidence in a light favorable to the district court's findings. Id. And we will not reverse unless, in view of all of the evidence, "we are left with a definite and firm conviction that a mistake has been committed." Id. (quotation omitted). Further, under the clear-error standard, we may not reweigh evidence, engage in fact-finding, or reconcile conflicting evidence. Id. at 221-22. We therefore "need not go into an extended discussion of the evidence to prove or demonstrate the correctness of the findings of the [district] court." Id. at 222.
Here, the district court found that the county's efforts included "case management services, gas vouchers, parenting classes, a parenting assessment, Rule 25 assessments, outpatient treatment, individual therapy, random testing, supervised and unsupervised visits, foster care payments, medical assistance and WIC services." It ultimately found these services reasonable.
The record supports the district court's finding. The county created three case plans tailored to father's needs at various times throughout the proceedings. It provided drug testing services throughout its more-than-year-long work with father, facilitated chemical dependency treatment, and helped keep father accountable in treatment. The social workers throughout followed up with father regarding drug testing, even providing testing at times. With regard to visitation, the county helped set up visitation with C.S. It made referrals for parenting classes, a diagnostic assessment, and chemical-dependency assessments. And during the first portion of the pandemic, father was offered virtual chemical-dependency treatment and virtual visitation with C.S. to maintain services despite the pandemic. In May 2020, the county recommended that the district court extend the permanency timelines to give father more time to work towards reunification. And after father was discharged from chemical dependency treatment, the second social worker tried to work with him to resume treatment. The district court did not clearly err by finding that these efforts were reasonable.
To convince us otherwise, father emphasizes that three different social workers were responsible for his case, that the second social worker maintained inconsistent contact with him, and that the county failed to update his case plan promptly when the second social worker took over the case. Although a more consistent caseworker might have been better, the second social worker oversaw father's case for almost a year, constituting the bulk of the time in this case. And while there was a two-month period when the second social worker failed to contact father consistently, father's other services continued.
Father cites to no legal authority supporting his argument that an updated case plan is required upon a transition between social workers and has therefore forfeited this contention. "An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection." Schoepke v. Alexander Smith & Sons Carpet Co. , 290 Minn. 518, 187 N.W.2d 133, 135 (1971) ; see Braith v. Fischer , 632 N.W.2d 716, 725 (Minn. App. 2001) (applying Schoepke in a family law appeal), rev. denied (Minn. Oct. 24, 2001). And our inspection of this record reveals no obvious error on this point.
Father also argues that the county should have offered a parenting capacity evaluation earlier than February 2021. But the record reflects that an evaluation was offered in November 2020, before the county filed the termination petition. Yet father declined to participate. The time at which evaluations were offered in this case do not make the county's efforts unreasonable.
Finally, in an overarching argument, father asserts that the pandemic generally detracted from the reasonableness of the county's efforts. In particular, he contends that virtual chemical dependency treatment was ineffective and therefore is not a "reasonable effort." But virtual treatment was limited to the early days of the pandemic. And it was not unreasonable for the county to rely on service providers who worked within pandemic restrictions. Further, father bears some responsibility for his failure to participate in treatment consistently and adequately, even if it was more difficult to do so virtually.
In sum, the district court did not clearly err by determining that the county's efforts were reasonable given the unique circumstances of this case. S.E.P. , 744 N.W.2d at 385 ; see A.M.C. , 920 N.W.2d at 655 (stating that "reasonable efforts" are fact-dependent).
II. The district court did not abuse its discretion by determining that a statutory ground exists for terminating father's parental rights.
Father argues that because no testimony establishes that he neglected his child and his present sobriety shows that he did not neglect his parental duties, the district court erred by determining that a statutory ground for termination was met.
In reviewing this issue, we closely scrutinize the sufficiency of the evidence supporting a statutory ground for termination to determine whether the evidence is clear and convincing. S.E.P. , 744 N.W.2d at 385. Here, the district court determined that three statutory grounds were met, but we need only conclude that one ground is supported in order to affirm. In re Welfare of P.R.L. , 622 N.W.2d 538, 545 (Minn. 2001). Considering the evidence supporting the ground of neglect of parental duties, we turn to examine that statutory ground.
A district court may terminate parental rights if a parent has "substantially, continuously, or repeatedly refused or neglected to comply" with his parental duties and either the county's reasonable efforts failed to correct conditions that led to the termination petition or further efforts would be futile and unreasonable. Minn. Stat. 260C.301, subd. 1(b)(2). We addressed the reasonable-efforts portion of this statutory ground above and now consider the parental-duties element. Parental duties include providing for the child's physical needs, such as food, clothing, and shelter, as well as other care and supervision necessary to facilitate the child's physical, mental, and emotional health and development. Id. And a parent's failure to comply with a reasonable case plan may constitute evidence of neglect of parental duties. In re Child of Simon , 662 N.W.2d 155, 163 (Minn. App. 2003). When we review the evidence of neglect, we address conditions at the time of the termination hearing and whether they are expected to continue for the foreseeable future. In re Welfare of Chosa , 290 N.W.2d 766, 769 (Minn. 1980).
Here, the district court found that father failed to comply with several aspects of his case plan. It stated that father's continued mental-health and chemical-health issues showed neglect of his duties to C.S. and that he is presently unable to care for C.S. And it determined that father's chemical health and mental health were unaddressed based on his absence from chemical-dependency treatment, failure to engage in mental-health treatment, and only recent resumption of chemical-dependency treatment. The court therefore concluded that the county established that father neglected his parental duties by clear and convincing evidence.
The district court's determination is supported in the record. Indeed, father does not dispute that he declined mental-health services, was discharged from chemical-dependency treatment after inconsistently attending and testing positive for controlled substances, and at times failed to respond to the county's efforts to facilitate visitation and drug testing. This behavior demonstrates noncompliance with much of his case plan, which is evidence of neglect of his parental duties. See Simon , 662 N.W.2d at 163. Further, the parenting-capacity evaluator testified that father failed to acknowledge how his inconsistency, mental health, and chemical dependency impacted C.S. And only when faced with the county's termination petition did father resume consistent efforts toward reunification. These circumstances show that father has neglected to make the changes necessary to be able to supervise and care for C.S. adequately.
Still, father points to his recent good progress in chemical dependency treatment. But the district court's finding that father's chemical health remained unaddressed until recently is not disputed. Further, the guardian ad litem and third social worker testified that they did not believe that father can maintain sobriety absent the structure of a case plan. See Chosa , 290 N.W.2d at 769 (noting that we address whether conditions at time of termination are expected to continue into foreseeable future). And father's history of inconsistency is relevant to determining whether he might maintain his current level of engagement. See id. ; see also In re Welfare of J.L.L. , 396 N.W.2d 647, 652 (Minn. App. 1986) (noting that "minimal improvement" may not overcome conclusion that "past problems make ... future performance as a parent uncertain"). We applaud father's progress, but in light of record evidence of father's inconsistency, we conclude that clear and convincing evidence supports the district court's determination that father neglected his parental duties and that reasonable efforts failed to correct the conditions leading to the termination petition. The district court therefore did not abuse its discretion by so determining. Because we conclude that this statutory ground was met, we need not address the other statutory grounds that the district court also concluded were met. See P.R.L. , 622 N.W.2d at 545.
Father also argues that further reasonable efforts would not have been futile. But we need not reach this issue, because the statute requires either that reasonable efforts failed to correct certain conditions or further efforts would be futile. Minn. Stat. § 260C.301, subd. 1(b)(2) ; see Goldman v. Greenwood , 748 N.W.2d 279, 283 (Minn. 2008) (stating that "or" is generally disjunctive).
III. The district court did not abuse its discretion by determining that terminating father's parental rights is in the child's best interests.
Father argues that C.S. is better off with his biological father and that the district court failed to consider what father describes as his "tender interactions" with the child. He asserts that termination of his parental rights is not in C.S.’s best interests.
In determining a child's best interests, the district court must balance "(1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child." A.M.C. , 920 N.W.2d at 657 ; see Minn. R. Juv. Prot. P. 58.04(c)(2)(ii) (requiring a court addressing whether to terminate parental rights to consider these factors). Competing interests of the child may include a stable environment, health considerations, and the child's preferences. In re Welfare of R.T.B. , 492 N.W.2d 1, 4 (Minn. App. 1992). If the child's and parent's interests conflict, the child's interests take precedence. Minn. Stat. §§ 260C.001, subd. 2(a), .301, subd. 7 (2020).
Here, the district court found that father has an interest in parenting C.S. But it also noted that father parented C.S. for only a short time and that father failed to engage with visitation and treatment at numerous times throughout the proceedings. The district court emphasized that C.S.’s exposure to methamphetamine damaged his nervous system so that he does not respond to pain in the same way as other children. Thus, he will require attentive and consistent care, as well as medical intervention. The district court also stated that C.S. has been out of father's home for most of his life, is thriving in his foster home, and needs permanency. The district court therefore determined that it is in C.S.’s best interests to terminate father's rights.
Father does not dispute any of the district court's findings, and the record, particularly the guardian ad litem's testimony, supports those findings. As the district court acknowledged, father clearly loves C.S. But due to his inconsistent parenting and treatment efforts, his interest in parenting C.S. is limited. As the district court observed, this 18-month-old child has spent the vast majority of his days away from father. And even if we discount the times when in-person visitation was impossible due to the peacetime emergency and when C.S.’s foster parents contracted COVID-19, C.S.’s time outside the home exceeded the permanency timelines. Although terminating father's rights may not be best for father, and it is true that a child has an interest in having a relationship with his biological parent, the district court appropriately considered C.S.’s needs and gave them precedence. It therefore did not abuse its discretion by determining that it is in C.S.’s best interests to terminate father's parental rights.
IV. Father was not deprived of his procedural-due-process rights.
Father argues that adhering to the usual termination timeline despite the pandemic deprived him of his procedural-due-process rights. He argues that this court should read a "force majeure" clause into the juvenile protection statutes that allows for an automatic extension of the permanency timeline when circumstances outside of a parent's control hinder reunification efforts.
A "force majeure" is an unanticipated and uncontrollable event, including an act of nature such as a flood or hurricane, that prevents someone from doing something the person agreed or planned to do. Black's Law Dictionary 761 (10th ed. 2014).
We begin our analysis by setting out the due-process standard that applies in termination-of-parental-rights cases. The United States and Minnesota Constitutions provide that no person may be "deprive[d] of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1 ; see also Minn. Const. art. I, § 7. The Due Process Clause protects parents’ fundamental liberty interest in custody and care of their children. In re Welfare of HGB , 306 N.W.2d 821, 825 (Minn. 1981). The amount of process due before depriving a parent of this right varies with the circumstances of each case. Id. In determining whether a parent was deprived of the parent's procedural-due-process rights, we balance: (1) the private interest affected by government action; (2) the risk of erroneous deprivation of that interest and the value of additional procedural safeguards; and (3) the government's interest. In re Welfare of Children of B.J.B. , 747 N.W.2d 605, 607 (Minn. App. 2008). We review a parent's due process claims in a termination-of-parental-rights proceeding de novo. In re Welfare of Children of D.F. , 752 N.W.2d 88, 97 (Minn. App. 2008).
Here, father has a fundamental liberty interest in custody and control of his child. HGB , 306 N.W.2d at 825. C.S. has an interest in permanency and stability. In re Welfare of Child of R.D.L. , 853 N.W.2d 127, 135 (Minn. 2014). And the county has an interest in protecting C.S., safeguarding his physical and psychological well-being, and promoting his welfare. Id. at 134.
The remaining question is whether the alleged procedural inadequacy risked the erroneous deprivation of father's parental rights, and whether father's proposed additional procedures might have altered the outcome. The juvenile protection statutes already allow the district court to continue a termination-of-parental-rights matter up to six additional months. Minn. Stat. § 260C.204(d)(1)(ii) (2020). And in June 2020, the district court extended the timeline for six months. This extension—and the overall procedure in this case—was adequate to protect father's rights and father's proposed procedure would not have changed the outcome.
Finally, father's argument asks this court to change existing law. But it is not our role to do so. Cf. In re Tr. of Williams , 631 N.W.2d 398, 410 (Minn. App. 2001) (noting that adopting exception to a rule in trusts context is for supreme court or legislature, not this court, to announce), rev. denied (Minn. Sept. 25, 2001). A decision whether to incorporate a force majeure clause in the juvenile protection statutes involves a policy decision outside the purview of this court. Cf. In re Welfare of Child of D.L.D. , 771 N.W.2d 538, 547 (Minn. App. 2009) (stating that allowing exception to child's-interests-as-paramount principle is policy decision not proper for this court). We therefore decline to do so.
DECISION
We conclude that the district court did not clearly err by finding that the county made reasonable efforts to reunify father with C.S. Nor did the district court abuse its discretion by determining that at least one statutory ground for termination, neglect of parental duties, was met, and that it is in the best interests of C.S. to terminate father's parental rights. Finally, we hold that the absence of an extension based solely on interruptions in the services available to father due to the COVID-19 pandemic did not violate father's procedural-due-process rights.