Opinion
No. A06-2459.
Filed: July 17, 2007.
Appeal from the District Court, Morrison County, File Nos. J9-06-50023, J7-06-5022.
Kevin H. Siefken, Christian Peterson, P.A., MN (for appellant R.M.H.)
Craig S. Nelson, Freeborn County Attorney, Erin M. O'Brien, Assistant County Attorney, MN (for respondent Freeborn County)
Nancy Hockenberry, MN (guardian ad litem)
Considered and decided by DIETZEN, Presiding Judge; TOUSSAINT, Chief Judge; and HALBROOKS, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant R.M.H. challenges the district court's termination of his parental rights, arguing that (1) the record lacks clear and convincing evidence that he abandoned the children, failed to abide by the duties of the parent-child relationship, is a palpably unfit parent, caused the children egregious harm, and left the children neglected and in foster care and (2) the district court failed to make adequate findings regarding the reunification efforts to support the termination. Because the determination that termination of appellant's parental rights is in the children's best interests is consistent with the statutory standards and supported by the record, we affirm.
DECISION
In reviewing a decision to terminate parental rights, an appellate court "must determine whether the [district] court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). This court must "closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing." In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). When making these determinations, this court exercises great caution, but "need find only one of the statutory grounds exists to terminate parental rights." Id. at 890. The district court's findings must be clear and specific to the statutory requirements, "and the evidence must address conditions that exist at the time of the hearing." Id. at 893. But "[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).
Appellant argues that the district court erred by terminating his parental rights because he wants to parent his children, but he cannot because of his incarceration. While, by itself, incarceration is an insufficient basis for terminating parental rights, it is a factor that the district court may consider along with the other evidence. In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn.App. 1997), review denied (Minn. Apr. 15, 1997). In any termination proceeding, "the best interests of the child must be the paramount consideration, provided that" the district court first finds that termination of parental rights is proper under subdivision 1(a) or one of the nine statutory standards enumerated in subdivision 1(b). Minn. Stat. § 260C.301, subd. 7 (2006).
Here, the district court determined that it was in the children's best interests to terminate appellant's parental rights because he murdered the children's mother and is in prison without the possibility of parole for 30 years. The record supports the determination that termination of appellant's parental rights is in the children's best interests. A social worker and a therapist each opined that contact between appellant and the children was not in the children's best interests. The children's guardian ad litem recommended that appellant have no contact with the children because he caused them constant trauma for nine months. There was also evidence that appellant had not acknowledged any responsibility for having created a traumatic environment for the children; that he showed no concern with how the children were coping or progressing in school and therapy; that he disregarded the children's therapist's recommendations; and that his only concern was that the children not live with any maternal relatives.
Further, from appellant's incarceration in May 2005 through late December or early January 2006, appellant had no contact with his children and refused to accept any services. Appellant requested that custody be transferred to his father, R.A.H., who never indicated any willingness to accept custody. A visitation had been planned between R.A.H. and the children, and R.A.H. was to give the children some of their belongings from their family home. But R.A.H. failed to show up, the children never received their belongings, and R.A.H. failed to attempt further contact with the children. When asked, the children indicated they did not want contact with R.A.H. Finally, the children do not want to see appellant; they are angry and grieving, and they blame him for murdering their mother. The district court did not err in finding that termination of appellant's parental rights was in the children's best interests.
The district court also found that termination was proper under several statutory factors — appellant abandoned his children, he neglected the duties imposed on the parent and child relationship, he is a palpably unfit parent, he caused egregious harm, he neglected his children, and they are in foster care. See Minn. Stat. § 260C.301, subd. (1)(b) (2006). Only one condition is required to support a termination that is in the children's best interests. Minn. Stat. § 260C.301, subd. 7.
Appellant argues that he did not abandon his children and that he wants visitation, but cannot only because of his incarceration. Generally, a parent is presumed to have abandoned his children if he has had no contact with them on a regular basis, has not demonstrated consistent interest in the children's well-being for six months, and the social services agency has made reasonable efforts to facilitate contact. Minn. Stat. § 260C.301, subd. 2(a)(1) (2006). Abandonment requires both actual desertion of the children and an intent to forsake the duties of parenthood. L.A.F., 554 N.W.2d at 398.
Not only has appellant actually deserted his children by murdering their mother and by being in prison, but he has also failed in his duties as a parent. The record reflects that appellant has focused only on his criminal trial and has not been concerned with the children; that appellant failed to feel any remorse for his actions and that he has not attempted to explain his actions to his children; and that the children have not been able to get their belongings because appellant has not allowed them access to the family home. The district court did not clearly err in finding that appellant abandoned the children.
Appellant argues that he has not neglected his parental duties because the court never requested a psychological evaluation, a case plan was never created, the case worker met with him only once, the county refused visitation based on the children's therapist's recommendation, and he did not choose to not participate. Parental rights may be terminated upon a finding
that 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 . . . 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[.]
Minn. Stat. § 260C.301, subd. 1(b)(2).
The district court found that appellant substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed on him by the parent and child relationship based on his actions of murdering the children's mother and placing himself in prison. There was testimony that appellant failed (1) to understand why the therapist recommended that he not have visitation, (2) to empathize with his children's emotions, and (3) to consider the best interests of the children, and instead he focused all of his efforts on his criminal defense. The district court did not clearly err in finding that appellant neglected his duties in the parent and child relationship.
Appellant argues that he is not a palpably unfit parent because there is no evidence of psychological disturbances. The district court may terminate parental rights for palpable unfitness, which includes "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." Id., subd. 1(b)(4). "Palpable unfitness" is determined by a parent's capacity to parent or ability to engage in "constructive efforts to improve [his] ability to parent." In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn.App. 1999), review denied (Minn. Aug. 25, 1999).
The district court found that appellant was a palpably unfit parent because he murdered the children's mother and because he will not be able to parent the children in the foreseeable future. While appellant's incarceration alone is insufficient to show that he is palpably unfit, his act of murdering the children's mother directly relates to the children's physical, mental, and emotional needs. Appellant's actions deprived the children of their primary caregiver, and it will be very difficult for appellant to parent from prison. Further, there was testimony that appellant has not been concerned about his children and has been entirely focused on himself, that he feels that he is not being treated fairly, that he has not explained his actions to his children, and he has not empathized with the children's feelings. The district court did not clearly err in finding that appellant is a palpably unfit parent.
Appellant argues that he did not cause the children egregious harm because there was no evidence that the children were home during the murder. A district court may terminate parental rights upon finding that a child has experienced egregious harm in the parent's care which is of a nature, duration, or chronicity that indicates a lack of regard for the child's well-being, such that a reasonable person would believe it contrary to the best interests of the child or of any child to be in the parent's care. Minn. Stat. § 260C.301, subd. 1(b)(6). "Egregious harm" may be shown by "neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care." Minn. Stat. § 260C.007, subd. 14 (2006).
The district court found that appellant caused the children egregious harm by taking the life of their mother and by making himself unavailable to parent. While there is no evidence that the children witnessed the murder, appellant has neglected the children by causing them trauma and not having even the limited contact with them that his incarceration allows. Moreover, the children do not want to see him. The district court did not clearly err in finding that appellant has caused the children egregious harm.
Appellant argues that the district court erred in finding that the children were neglected and in foster care because he has not been offered any rehabilitative services, no psychological evaluation was conducted, and because no case plan was offered. A district court may terminate parental rights if it finds that a child is neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(8). "Neglected and in foster care" means a child who has been placed in foster care and "[w]hose parents' circumstances, condition, or conduct are such that the child cannot be returned to them" and "[w]hose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child." Minn. Stat. § 260C.007, subd. 24 (2006).
To determine whether a child is neglected and in foster care, a district court shall consider all of the circumstances surrounding the child's placement in foster care. Minn. Stat. § 260C.163, subd. 9 (2006) (listing seven noninclusive factors for consideration). The district court balances these factors, considering both the interests of the parents and the interests of the child. In re Welfare of HGB, 306 N.W.2d 821, 826 (Minn. 1981).
Because appellant is in prison, he cannot take custody of the children. Additionally, there was testimony that appellant was offered services and refused them. Further, at the time of the termination hearing, the children had been out of the home for approximately 177 days, and they were both under eight years old. There was also testimony that a case plan was not created because it could not be implemented. These facts support a finding that the children are neglected and in foster care.
Finally, appellant argues that the district court failed to make findings regarding reunification efforts. This court must determine whether clear and convincing evidence supports the district court's finding that the county made reasonable efforts to reunite the family. In re Children of T.A.A., 702 N.W.2d 703, 708-11 (Minn. 2005).
The district court did not make specific findings that reasonable efforts have failed to correct the conditions leading to the children's out-of-home placement. But the district court did state that because appellant "is not going to be available for the next 30 years except for telephone conversations or — or brief one-hour-a-month visits in prison, he's not going to be available. So whether they had a good case plan or not in the past — I wonder, is that — is that going to be a huge factor in the decision?" Therefore, the district court found that reasonable efforts for reunification would have been futile and the county was relieved of its obligation to make such reasonable efforts. See In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn.App. 2003) (concluding that "where the futility of reunification efforts is irrefutable, a case plan is unnecessary"). The district court did not err in failing to make specific findings that efforts at reunification failed.