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In re Welfare of Child of A.M.K.

Court of Appeals of Minnesota

July 22, 2013

In the Matter of the Welfare of the Child of: A.M.K.V., Parent.

UNPUBLISHED OPINION

Ramsey County District Court File No. 62-JV-12-2592

Sophia Y. Vuelo, St. Paul, Minnesota (for appellant A.M.K.V.)

John J. Choi, Ramsey County Attorney, Kathryn Eilers, Assistant County Attorney, St. Paul, Minnesota (for respondent Ramsey County Community Human Services)

Thomas Nolan, Jr., St. Paul, Minnesota (for guardian ad litem)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Chief Judge; and Connolly, Judge.

CONNOLLY, Judge

Appellant challenges the termination of parental rights (TPR) to her daughter, arguing that clear and convincing evidence does not support the district court's findings that (1) four statutory grounds for termination exist; (2) respondent made reasonable efforts to reunite appellant with her daughter; and (3) termination of her parental rights is in her daughter's best interests. We affirm.

FACTS

Appellant A.M.K.V. is the mother of O.Y., who was born on December 6, 2011, 11 weeks premature. Weighing less than two pounds, O.Y. was at a high risk of malnutrition and failure to thrive. She needed to be fed more frequently than other newborns; her formula needed to be mixed in a specific way; and the person feeding her needed to use special techniques and to be trained in CPR to prevent O.Y. from choking or vomiting.

O.Y.'s treating doctor and a hospital social worker spoke directly with appellant about what she needed to do before O.Y. could go home with her. On January 19, 2012, the social worker informed appellant over the telephone that she needed to be at O.Y.'s bedside more consistently to learn how to provide for O.Y.'s needs. Appellant agreed to increase the amount of time she spent with O.Y. and to work on learning how to feed and care for her. Appellant next came to the hospital on January 27. The social worker again met with appellant regarding the hospital's expectations, and appellant agreed to a more specific plan, which required her to stay at O.Y.'s bedside for continuous hours, perform multiple consecutive feedings, demonstrate competency in feeding O.Y., and complete an infant CPR course. Appellant failed to comply with the plan. She did not stay at the bedside as agreed; she fed O.Y. only twice; and she was minimally responsive to O.Y.'s needs. Finally, on February 2, the social worker and a child-protection worker met with appellant and O.Y.'s father to create a written bedside-visitation plan. The new plan required appellant to be at O.Y.'s bedside for 8 to 12 consecutive hours on consecutive days and to demonstrate that she was competent to care for O.Y. Appellant again failed to comply with the plan: one of her overnight visits was cut short; she was minimally successful in caring for O.Y.; and she failed to complete the infant CPR course.

Although O.Y. was medically ready to be discharged from the hospital at the end of January 2012, she was not released until February 10, due to concerns about appellant's ability to safely care for her. O.Y.'s doctor was concerned that appellant was not competent to feed and care for O.Y., did not wake up to O.Y.'s cries when she was hungry, and was not at O.Y.'s bedside consistently. Appellant had visited O.Y. on only 28 of the 67 days she was hospitalized and had not completed an infant CPR course. Appellant disagrees that she was not consistently at the hospital with O.Y. She contends that she "pretty much lived at the hospital" while O.Y. was there and was absent from January 18 to 27 only because she was sick. Appellant further stated that she called the hospital daily to let them know when she would not be there and to check on O.Y. According to appellant, she sometimes did not wake up because she was exhausted or because O.Y. did not cry very loudly.

O.Y. was released to the custody of respondent Ramsey County Community Human Services Department and placed in foster care. Respondent filed a child in need of protection or services (CHIPS) petition, and, on February 23, O.Y. was adjudicated to be CHIPS. Respondent assigned a child-protection worker (CPW) to appellant's case, and the district court appointed a guardian ad litem (GAL) for O.Y.

When the CPW visited O.Y. on February 29, she learned that appellant had not visited O.Y. since O.Y. was released from the hospital. The CPW held family meetings on March 2 and 8 to discuss a case plan for appellant and temporary placement of O.Y. with a family member. Despite the efforts of the CPW and her staff to locate and notify appellant of the meetings, she did not attend either meeting. According to the CPW, appellant told her O.Y.'s abusive father prevented her from attending the meetings. Appellant claims she did not know about the second meeting and was unable to attend the first meeting because she did not have a ride and had her weekly group session for a program she was required to complete as a condition of her probation for a 2011 criminal offense.[1] During this period, the CPW had a difficult time locating appellant. She was informed that appellant no longer lived at her mother's house, but she was unable to get a new address for her.

On March 9, the CPW met with appellant for the first time. Appellant appeared frail, pale, tired, and angry; she did not pay attention; she texted most of the time; and she left early. Appellant did tell the CPW that she grew up in an abusive family and was not happy, but appellant seemed preoccupied during the meeting. The CPW met with appellant again on April 2 and created a case plan, which required appellant to visit O.Y. weekly; to participate in O.Y.'s medical appointments; to participate in parenting, anger-management, and time-management classes; to keep in touch with the CPW; to maintain stable housing; and to take care of her own health. The CPW described appellant as not focused, negative, and angry. As of April 2, appellant had visited O.Y. only once since O.Y. was released from the hospital; she was 50 minutes late for that visit; and she had not attended any of O.Y.'s medical appointments.

On April 10, O.Y. was placed with Keith Johnson and True Vang, who is related to appellant through her father.[2] Appellant visited O.Y. once in April, four times in May, once in June, and once in July, and she did not attend any of O.Y.'s medical appointments. According to the CPW, respondent scheduled appellant's visits at a fixed time and called to remind her of the visits. The CPW also provided appellant with a bus card to help her with transportation. During May, the CPW and the person supervising appellant's visits with O.Y. noticed bruises on appellant's arm and face, which appellant attributed to O.Y.'s father. The CPW told appellant to see a doctor and to consider getting an order for protection. O.Y.'s father went to jail in June 2012.

While acknowledging that she did not visit O.Y. very often between February and August 2012, appellant disagreed that she visited her only seven times and that she was often late. Appellant testified that, when she was late, it was no more than 30 minutes and was due to her not having a car and depending on others for transportation. According to appellant, O.Y.'s father also kept her from doing the things she needed to do. He would call her names, punch her in the face, bite her, and pull her hair to prevent her from doing things and going places. Appellant did not report the abuse out of fear for her life. Appellant testified that her life changed when O.Y.'s father went to jail because he was no longer there to control her. Appellant also stated that she started following through with everything, went to every visit, and did everything on her case plan. But according to the CPW, appellant did not start working on her case plan until September.

The CPW again met with appellant on August 1. According to the CPW, appellant smiled for the first time, seemed happier and more positive, stated that her life had changed, and expressed a desire to work to get her child back. But, as of August 1, appellant still had not participated in parenting classes or completed an infant CPR course, had not attended any of O.Y.'s medical appointments, did not have stable housing or employment, had not provided the CPW with information about her medical situation, and had failed to keep regular contact with the CPW or O.Y. As a result, respondent filed a petition to terminate appellant's parental rights on August 6.

On September 17, appellant agreed to a new case plan, which added requirements that she complete a psychological evaluation, participate in therapy if recommended, complete a chemical-health assessment, and complete random UAs if recommended. The additional requirements stemmed from the CPW generally learning more about appellant and what services she needed, and appellant admitting that she was experiencing anger and depression.

Appellant completed the psychological evaluation on September 18. The assessor diagnosed her with post-traumatic stress disorder and recommended individual psychotherapy, a psychiatric evaluation, a mental-health case manager, and appointments with her primary doctor to maintain her physical health. At the time of trial, appellant had started seeing an individual therapist but had not yet been assigned a mental-health case manager. On September 25, appellant completed an infant CPR course, and on October 1, she underwent a chemical-health assessment, which revealed that she did not meet the criteria for a substance-abuse disorder.

On October 2, appellant agreed to a new case plan, which further required her to keep in contact with the GAL, comply with her probation, maintain employment, and report to the CPW every time she moved. Although appellant did not miss any of her visits with O.Y. after an October 11 pretrial hearing, she did not take advantage of an opportunity to arrange for additional visitation with O.Y.'s foster parents. On October 29, the CPW, the GAL, appellant, and her mother met to discuss appellant's situation. Appellant's mother stated that she was willing to have appellant and O.Y. live with her. But, according to the CPW, appellant's mother has never met O.Y., she has never had appellant or O.Y. at her house, and respondent has not had an opportunity to visit the house. The CPW was surprised by the meeting because appellant and her mother had always been negative and angry with each other.

The TPR trial began on November 5, 2012. Appellant, O.Y.'s doctor, the hospital social worker, the CPW, and the GAL all testified.

Appellant testified that she has been cooperative with respondent and has done what was asked of her as a mother to O.Y. She also stated that she believes she and O.Y. have a bond. According to appellant, she plays and takes pictures with O.Y., feeds her, and changes her diapers when they are together, and she is able to soothe and comfort O.Y. when she cries by carrying her, talking to her, or doing something funny. Appellant further testified that O.Y. knows who she is, cries when she wants to be fed, and smiles and laughs when she's happy; she said, "I love [O.Y.] with all my heart, and I would never give up on my daughter."

As to housing, appellant testified that she has had stable housing since O.Y. was released from the hospital, currently lives with friends, and could stay with her mother if necessary. As to employment, she testified that she was rarely working but had a job that allowed her to work part-time. Appellant explained that she did not complete the required infant CPR class until seven months after O.Y. was released from the hospital because O.Y.'s father prevented her from doing so. She testified that she has attended two therapy sessions, which are helping her cope with the challenges in her personal life and become a better parent, and that she has called to get connected with a mental-health case worker. Finally, appellant testified, that she needs more time to complete the requirements that were recently added to her case plan.

The CPW testified that it would not be safe to place O.Y. in appellant's care now given her post-traumatic stress disorder, her need for psychiatric care, her anger toward her family and O.Y.'s father, and her inability to locate stable housing and sufficient employment. According to the CPW, at the time of trial, appellant had not yet started parenting classes or attended medical appointments for O.Y., and she did not have stable housing. The CPW testified that, until appellant moved to her current address, she was unable to verify where and with whom appellant was living. The CPW further testified that appellant did not begin to address her history of domestic violence until respondent referred her for a diagnostic assessment in September 2012, and she is just beginning to address these issues and their impact on her. The CPW opined that, because of such issues, appellant is unable to comprehend her responsibilities as a mother or make good choices for her life.

The CPW admitted that it would not have been reasonable for appellant to complete all 11 items on the October 2 case plan by the time of trial. But she also testified that appellant would not be able to adequately parent O.Y. in the near future, stating "I don't want to really punish the child to wait for the mom to really get better." The CPW testified that it was in O.Y.'s best interest for appellant's parental rights to be terminated, noting that she supports "stability of the child in the home where she would be safe and receive ongoing stability."

The GAL testified that she observed O.Y. on four occasions, in May, August, October, and November 2012, in the presence of O.Y.'s foster parents, but did not have the opportunity to observe O.Y. with appellant. According to the GAL, appellant did not show up for an observation scheduled for October 2, arrived more than 45 minutes late and after the GAL had left for work on October 9, and did not follow up with the GAL to schedule another observation thereafter. Appellant testified that there was a misunderstanding on October 2 and that she was late on October 9 because she did not have a ride.

The GAL stated that she believed respondent's case plans were appropriate and that there was nothing else respondent could or should have done. She also expressed concern that appellant's visits with O.Y. were still inconsistent and that appellant had not participated in any of O.Y.'s medical appointments, had not started parenting classes, still did not have stable housing or employment, and had not addressed her own health concerns. The GAL testified that it was in O.Y.'s best interests for appellant's parental rights to be terminated, citing (1) appellant's failure to complete the tasks she and the hospital agreed to while O.Y. was hospitalized; (2) appellant's inconsistent visits with O.Y. between her release from the hospital and July 2012, and appellant's physical condition at such visits; (3) O.Y.'s placement with her maternal relatives, where she is being well cared for and is thriving physically, emotionally, and mentally; (4) appellant's failure to complete her case plan and inability to care for O.Y. given her emotional, psychological, and mental health; and (5) O.Y.'s age. The GAL also stated that "[i]t is crucial that [appellant]'s parental rights be terminated so that the court can proceed forward and find a permanent, safe, and stable home for [O.Y.] where she can be loved, cared for, and supported by people that she can call Mom and Dad."

On January 23, 2013, the district court ordered termination of appellant's parental rights. This appeal follows.

DECISION

This court will "affirm the district court's termination of parental rights when at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the best interests of the child, provided that the county has made reasonable efforts to reunite the family." In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008) (citation omitted). We review the district court's findings of fact "to determine whether they address the statutory criteria and are not clearly erroneous, in light of the clear-and-convincing standard of proof." In re Welfare of Children of K.S.F., 823 N.W.2d 656, 665 (Minn.App. 2012) (citation omitted). "A finding is clearly erroneous if it is either manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." In re Welfare of Children of T.R., 750 N.W.2d 656, 660-61 (Minn. 2008) (quotation omitted). But we review the district court's determination that the statutory requirements for termination have been established by clear and convincing evidence for an abuse of discretion. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900-01, 905 (Minn.App. 2011), review denied (Minn. Jan. 6, 2012).

The district court terminated appellant's parental rights pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8) (2012), finding that respondent has made reasonable efforts to reunite appellant with O.Y., that additional services will not likely bring about lasting parental adjustment enabling O.Y.'s return to appellant's care within a reasonable period of time, and that the termination of appellant's parental rights is in O.Y.'s best interests. Clear and convincing evidence supports these findings.

I.

Among other grounds, the district court may terminate a parent's rights to a child if it finds "that the child is neglected and in foster care." Minn. Stat. § 260C.301, subd. 1(b)(8). A child is neglected and in foster care if (1) the child "has been placed in foster care by court order"; (2) the child's "parents' circumstances, condition, or conduct are such that the child cannot be returned to them"; and (3) the child's "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 (2012). When determining whether parental rights should be terminated because a child is neglected and in foster care, the district court must consider the length of time the child has been in foster care; the effort the parent has made to adjust circumstances, conduct, or conditions to allow return to the home; the parent's contact with the child preceding the petition; the parent's contact with the responsible agency; the appropriateness and adequacy of services offered or provided to the parent; the likelihood that additional services will bring about lasting parental adjustment enabling placement with the parent within a reasonable time; and the social service agency's efforts to rehabilitate and reunite. Minn. Stat. § 260C.163, subd. 9 (2012).

Appellant argues that O.Y. is not neglected and in foster care because she has maintained regular contact with O.Y. since she was placed in foster care and because respondent failed to provide appellant with an adequate, relevant, and realistic case plan. We disagree.

It is undisputed that O.Y. has been in foster care since being released from the hospital in February 2012. And the record reflects that appellant has not maintained regular contact with O.Y. since she was born. Appellant was not consistently at O.Y.'s bedside while she was in the hospital; she rarely visited O.Y. during the months following her release from the hospital; and she missed a visit with O.Y. on October 2, one month before trial.

With respect to appellant's efforts to correct the conditions that necessitated the out-of-home placement, the record reflects that appellant has not yet participated in parenting classes or attended any of O.Y.'s medical appointments, she does not have stable housing or sufficient employment, and she has not addressed her own health concerns. Further, despite the county's continuous efforts to maintain contact with appellant and get her to work on her case plan, appellant was often difficult to find and did not start working on her case plan until September 2012, three months after O.Y.'s father went to jail in June 2012, and could no longer prevent her from complying with her case plan. Moreover, at the start of trial, appellant had not yet addressed all the requirements of her initial April 2012 case plan. Finally, appellant does not claim that O.Y. can be placed in her care at this time. And, given appellant's continued failure to participate in parenting classes, attend O.Y.'s medical appointments, or establish stable housing, the district court did not err in finding that additional services would not enable placement of O.Y. with appellant in the reasonably foreseeable future.

We therefore conclude that the district court's determination that O.Y. is neglected and in foster care is supported by clear and convincing evidence. And, because clear and convincing evidence establishes the statutory requirements for termination under section 260C.301, subdivision 1(b)(8), we need not address the additional statutory grounds on which the district court relied. See T.R., 750 N.W.2d at 661 (noting that clear and convincing evidence supporting a single statutory ground is sufficient to continue the TPR analysis).

II.

When terminating parental rights, a district court must make findings either that the social services agency made reasonable efforts to reunify the parent and the child, or that reasonable efforts at reunification were not required. Minn. Stat. § 260C.301, subd. 8 (2012); Minn. Stat. § 260.012(h) (2012). A county is not required to make reasonable efforts if "the provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances." Minn. Stat. § 260.012(a)(7) (2012). "Reasonable efforts" means "the exercise of due diligence by the [county] to use culturally appropriate and available services to meet the needs of the child and the child's family." Minn. Stat. § 260.012(f) (2012). In determining whether reasonable efforts have been made, the district court must consider whether the services 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).

"Efforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure." In re Welfare of J.H.D., 416 N.W.2d 194, 198 (Minn.App. 1987), review denied (Minn. Feb. 12, 1988). Whether the county's services constitute "reasonable efforts" depends on the duration of the county's involvement and the quality of the county's effort. In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn.App. 1990), review denied (Minn. July 6, 1990). The assistance must go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help. Id. Such help must focus on the parent's specific needs. In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn.App. 1987), review denied (Minn. Sept. 18, 1987).

The district court concluded that respondent "has made all reasonable efforts to rehabilitate and reunite this family. The services provided by [respondent] were appropriate and adequate to facilitate a reunion of this family." Appellant generally argues that respondent "failed to make reasonable efforts because the services were not 'adequate, ' 'available and accessible, ' 'consistent and timely, ' or 'realistic' under the circumstances as required by [statute]."

Specifically, appellant contends that respondent's efforts to reunify her with O.Y. were unreasonable because her case plan continued to change over time, including as late as two months before trial, and grew in length. As a result, appellant argues that it was unrealistic to expect her to complete the new recommendations in the October case plan and that she needed more time. But, as respondent points out, appellant mischaracterizes the changes that were made and the reasons for the changes. The record reflects that most of the additional requirements in October 2012—including that appellant comply with the requirements of her probation, maintain contact with the GAL, and notify respondent each time she moved—were already mandated by law and not overly burdensome on appellant. They were things she could do right away without any additional effort. The record also reflects that respondent added the requirements that appellant complete psychological and chemical-health assessments and follow the recommendations after the CPW and her staff started having more consistent contact with appellant and learned more about her situation. The CPW testified that she talked to appellant about her history of abuse and having a psychological assessment in May and again in August but was unable to get anywhere because appellant was either not focused or not interested.

Furthermore, the changes and additions to appellant's case plan support the district court's finding that respondent's efforts were reasonable. In part, the purpose of a case plan is to provide a parent with a description of what she needs to accomplish or demonstrate before she can be reunited with her child. Therefore, if the requirements added in September and October needed to be accomplished or demonstrated before appellant could be reunited with O.Y., it was in appellant's interest to be aware of those requirements. Moreover, the district court did not base its decision entirely on appellant's inability to accomplish or address the requirements added to her case plan in September and October 2012. Rather, the district court also found that appellant did not have stable housing, had not started parenting classes, and had never attended O.Y.'s medical appointments, requirements that had been part of her case plan since April 2012.

Appellant also contends that respondent's efforts were not genuine because it simply created a list and did not assist appellant with accessing the services she needed to be rehabilitated until September 2012. But the record reflects that respondent connected appellant with services to the extent she would cooperate and repeatedly encouraged her to work on her case plan and reminded her of visits and appointments. It is clear that appellant did not begin working on her case plan until September 2012, nine months after O.Y. was born. And appellant was inconsistent in her visits with O.Y. and difficult to contact until at least August. She also did not complete her CPR course until September. Further, at the time of trial, appellant had yet to enroll in parenting classes, attend O.Y.'s medical appointments, or obtain stable housing.

Finally, appellant contends that respondent's efforts to reunify her with O.Y. were unreasonable because she should have been provided with mental health services at the time of the initial case plan instead of two months before trial. Appellant asserts that respondent learned early on that she needed services to address her mental health issues. But there is no evidence in the record that appellant would have engaged in mental health services before September 2012. Not only did appellant not start addressing the other aspects of her case plan until that time, but the CPW testified that appellant specifically refused to seek such services earlier on. Furthermore, the evidence supports the district court's findings that appellant was difficult to contact before August and that respondent did not fully understand appellant's issues until later on.

We conclude that clear and convincing evidence supports the district court's determination that respondent made reasonable efforts to reunite appellant with O.Y.

III.

The "paramount consideration" in all TPR proceedings is the best interests of the child. Minn. Stat. § 260C.301, subd. 7 (2012). Analyzing the best interests of the child requires balancing the child's interest in preserving a parent-child relationship, the parent's interest in preserving that relationship, and any competing interest of the child. J.R.B., 805 N.W.2d at 905. "Competing interests include such things as a stable environment, health considerations and the child's preferences." Id. (quotation omitted). "Where the interests of parent and child conflict, the interests of the child are paramount." Minn. Stat. § 260C.301, subd. 7.

The district court made extensive findings regarding O.Y.'s best interests and determined that it is in O.Y.'s best interest that appellant's parental rights be terminated. Specifically, the district court found that (1) O.Y. does not have an interest in preserving a parent-child relationship with appellant, (2) appellant's interest in preserving a parent-child relationship with O.Y. is difficult to determine, and (3) O.Y. needs a stable, secure home immediately. Further the district court found that "[O.Y.]'s interests outweigh what appears to be the possibility that it will be a long time before [appellant] is able to meet [O.Y.'s needs]."

Appellant argues that the district court abused its discretion in determining that termination of her parental rights is in O.Y.'s best interest because "[she] loves O.Y., has demonstrated an ability to parent O.Y., and has the capacity to provide O.Y. with a permanent home in the foreseeable future." But, although appellant testified that she loves O.Y. and there is evidence that O.Y. recognizes appellant, O.Y. has never lived with appellant, appellant has never cared for O.Y. for an extended period of time, and appellant has never attended O.Y.'s medical appointments. As the district court found, appellant and O.Y. do not have a parent-child relationship to preserve.

Appellant also argues that O.Y.'s need for stability and permanency, which she acknowledges is a significant consideration, does not outweigh her interest in maintaining a parent-child relationship with O.Y. But "[w]here the interests of parent and child conflict, the interests of the child are paramount." Id. O.Y. has competing interests including stability, proper care, and permanency, which favor termination of appellant's parental rights. At the time of trial, shortly before O.Y.'s first birthday, appellant had yet to establish stable housing. Although appellant testified that she had a permanent place to stay with friends and could move in with her mother if necessary, there is no evidence that either option would provide the stable housing O.Y. needs. Similarly, at the time of trial, appellant had yet to enroll in parenting classes. It is therefore unclear how appellant can argue that she can provide O.Y. with the proper care she needs. Finally, O.Y. has a strong interest in permanency, which both the CPW and the GAL testified could be obtained only through the termination of appellant's parental rights. See In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986) (emphasizing "the importance of emotional and psychological stability to a child's sense of security, happiness and adaptation, as well as . . . the fundamental significance of permanency to a child's development"). As the district court found, it is likely to be a long time before appellant can meet O.Y.'s needs, during which time O.Y. would remain in the uncertainty and instability of foster care.

We conclude that the district court did not err in determining that termination of appellant's parental rights is in O.Y.'s best interests.

Affirmed.


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