October 21, 2013
In the Matter of the Welfare of the Children of: C. L. W., C. W. P., N. L. A., Parents
Jackson County District Court File No. 32-JV-11-56
Jacob M. Birkholz, Birkholz Law, LLC, Mankato, Minnesota (for appellants, C.L.W. and N.L.A.)
Robert C. O'Connor, Jackson County Attorney, Sherry E. Haley, Assistant County Attorney, Jackson, Minnesota (for respondent county)
Considered and decided by Hooten, Presiding Judge; Johnson, Chief Judge; and Halbrooks, Judge.
Appellant-parents argue that the district court abused its discretion by terminating their parental rights. Because the evidence reasonably supports the district court's conclusion that appellants have substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon them by the parent and child relationship, we affirm.
A petition for children in need of protection or services was filed by respondent Jackson County Department of Human Services on October 6, 2011, concerning the health and welfare of three minor children born in 2006, 2007, and 2009, respectively. Appellant C.L.W. is the children's mother and appellant N.L.A. is the father of the younger two children. A petition to involuntarily terminate their parental rights was filed by respondent on August 8, 2012, under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8) (2012).
A. Living Conditions Prior to Children's Out-of-Home Placement
N.L.A. admitted that the family has moved approximately 10 times since the beginning of his six-year relationship with C.L.W., living primarily in apartments or rural residences in and around Jackson and Scott Counties with other family members for short periods of time. In the spring of 2010, they moved to a two-bedroom trailer home in Missouri to help C.L.W.'s father set up a campground. In June 2011, child protection personnel in Missouri visited this residence and reported that the trailer was dirty, the children were being restrained with zip ties, one or more children were locked into a room for extended periods of time with the window blocked by a metal sheet, and there were 23 dogs and a pet pig on the premises. Soon after the Missouri child protection agency became involved with the family, the parents moved back to Minnesota to live with N.L.A.'s siblings and their families in rural Minnesota.
In October 2011, while living in a home in rural Jackson County with N.L.A.'s brother and his family, law enforcement authorities responded to a report of animal endangerment and became aware of the condition of the home and that children were living in the home. The evidence was undisputed that the condition of the home created an unfit environment for the children. C.L.W. admitted the home was "a disaster, dirty, feces everywhere, garbage, clothes everywhere, bags, rabbits, rabbit cage [that] tipped over . . ., and there was rabbit feces in one of the bedrooms." Photos were also submitted which showed numerous dead chickens left in chicken crates in the home and other dead animals on the farm, including one or more carcasses of horses and a cat, within close proximity to the home.
N.L.A. admitted that he brought 30 mature chickens, as well as six or seven kittens, into the home. He described the kitchen as being "[d]isgusting and messy" and "unsanitary, " noting that in addition to the chicken grit on the floor, a puppy had also got into the garbage and spread it around the kitchen. He also admitted that the same dirty dishes and empty food containers that were observed by the county authorities had been sitting in the kitchen for an entire month. C.L.W. recalled that the chicken crates were inside the residence about a week prior to the county's investigation of the home. N.L.A. explained that when they moved in, one room contained dog feces and garbage "ankle to knee deep." A sheriff's deputy also confirmed that there was fecal matter on the kitchen floor and that the house smelled of manure and rotten garbage. The children did not have their own bedroom, but slept in the same room as their parents.
On October 4, 2011, the children were removed from the home by respondent. Since their removal from the home, the children have remained in foster care. The parents moved first to an apartment, but eventually purchased a home in Sherburn, a town in Martin County, where they resided during trial.
B. The Children's Behavioral, Educational, and Health Issues
In evaluating the children and their needs after their removal from the home, respondent learned that the children had numerous behavioral, educational, and health issues that had to be addressed. The most significant issue identified by respondent was that the two younger children, who were then ages two and four, engaged in inappropriate sexual behavior. This was first discovered by the foster mother in December 2011 when the middle child made certain comments and gestures involving his penis while in the bathtub in the presence of his brothers. On another occasion, the foster mother saw the youngest child perform oral sex on the middle child. After this, she attempted to never permit the two younger children to be together out of her sight. However, on another occasion, she found them under a blanket with "pants . . . kind of pulled down."
Testimony established that the middle child exposed himself while at daycare and licked a doll's crotch. The eldest child took pictures of his penis with a cell phone and informed the foster mother that he saw pictures of a penis while watching television with his mother. The eldest and middle children were kissing girls at daycare. The children were also frequently making inappropriate sexual comments. The foster mother claimed it was difficult for her to find and keep daycare providers, noting that five or six daycare providers in one year would not continue caring for the children because of their inappropriate sexual behavior. A mental health professional testified that considering the young age of the children, "it would seem reasonable that at some point there has likely been sexual abuse" because "[c]hildren at that age do not understand sexual behaviors of that nature."
In addition to these inappropriate sexual behaviors, the eldest and middle children were diagnosed by a child psychiatrist with adjustment disorder arising out of their disrupted family life and removal from home. The psychiatrist also diagnosed the eldest child with attention deficit hyperactivity disorder, noting that, at the foster home and in school, he was hyperactive; was easily distracted; had problems concentrating or following instructions; was unintentionally aggressive while playing; and had poor insight and judgment, and disruptive behavior disorder due to the frequency of his disruptions at home and at school. The psychiatrist also noted concerns that the eldest child exhibited a high degree of emotional distress, which was manifested by frequent nightmares, and was stealing from his foster home and school, hoarding food, and being overly aggressive with his brothers. The foster mother also observed that he was so afraid of being locked into a room that he became upset whenever he was in a room and the door was shut. During the children's play therapy, the therapist noted that he refused to discuss his parents and indicated that he wanted to stay with his foster mother. Because of behavioral issues and deficient academic performance, the eldest child was taken out of kindergarten and placed in an individualized education program in special education. The foster mother also reported that he was behind on immunizations and "[a]ll 8 of his molars were black" and rotted.
As a result of her evaluation of the middle child, the psychiatrist diagnosed him with anxiety disorder with moderate to mostly severe sexual behaviors with a probable history of neglect and abuse. During the course of his treatment, the doctor noted that the middle child did not interact with his mother, but only interacted with his brothers and his foster mother. An in-home family counselor reported that the middle child had numerous tantrums and outbursts and was frequently bullied by his older brother. The counselor noted that the middle child did not "exhibit behaviors of a normal 4 year old, " noting that he had a "difficult time calming down" when he was upset. The foster mother reported that he was quite anxious and was always worried that she would leave.
The children's therapist, who saw the children frequently for therapeutic play sessions, diagnosed the middle child with post-traumatic stress disorder and noted that he had little or no interaction with his mother. She observed that during the play therapy sessions, the middle child would often regress to the stage of infancy or toddler, crawling on the floor, talking like a baby, and wanting to suck on a bottle. He exhibited aggressive and sexual behaviors such as jumping on a doll and saying he wants to cut it and have sex with it. He would also throw or hit the doll and give the doll an inappropriate gesture with his middle finger, make inappropriate sexual comments, take the clothes off the doll and would get on the doll and roll back and forth on it. The middle child called the doll "dumb, " "poopy butt, " and "girly, " and then said that he was going to have "sex on you" to the doll.
The therapist also observed that the middle child burped and farted in the play therapy room, which she attributed to his struggle to deal with his trauma symptoms. The therapist explained that the middle child was not purposely trying to be naughty, but was engaged in "compulsive behavior that he has learned." On one occasion during play therapy, he was pretending to cook a meal and abruptly took out the doll and started hitting it when his mother arrived late to session. Instead of acting excited to see his mother, he started calling the doll a "bad guy" and angrily threw it into the hallway. In addition to his regressive and inappropriate sexual behaviors, the middle child was still wetting his bed during the night and, like his older brother, was stealing and hoarding food in his bedroom. He was also behind on immunizations and was placed in special early childhood education classes.
C. Services Provided to the Children
Medications were prescribed for the older two children and all three children participated in in-home counseling and play therapy sessions. Immunizations were updated and the eldest child's molars were capped. A safety plan was developed requiring constant supervision and appropriate boundaries. The therapist also recommended that the middle child learn alternate ways to soothe himself apart from aggressive sexual displays. In addition, the therapist indicated that the children needed stability and parents who understood their developmental needs and were committed to working on those needs, including the need for appropriate supervision, security and safety. After spending one year in special education, the eldest child was placed in kindergarten and was doing well academically, with fewer inappropriate behaviors.
D. The Parents' Mental Health, Financial, and Parenting Issues
A clinical psychologist, who treated N.L.A., testified that she was concerned about the financial stability of N.L.A., as well as his parenting of the children. She noted that the parents had never "really established a residence of their own." In addition, she testified about concerns that she had regarding reports of inadequate supervision of the children and that the children's basic needs were not being met. She also had concerns regarding N.L.A.'s ability to handle stress, his lack of self-esteem, and his chemical dependency issues.
C.L.W. was diagnosed with adjustment disorder with disturbance of conduct, cannabis abuse, personality disorder, and anti-social narcissist traits. According to the psychologist, C.L.W.'s anti-social narcissist traits were manifested in her resentment towards authority and an outward display of security not representative of reality. C.L.W. was also diagnosed with anger management and depression issues with a history of a violent temper and assaultive behavior.
E. Services Provided to the Parents
The parents were given many services. N.L.A. was provided with a course in financial management. Both parents were given individual and in-home family therapy, which included anger management therapy for C.L.W. Both parents were provided parenting skills programs. The parents also were scheduled to have regular visitation with the children and to participate in play therapy with the children. After the parents admitted that their children were in need of protection or services, the district court ordered, among other things, that the parents do the following before reunification with the children: (1) "directly supervise the children during all parenting time visits" and not let the children "play or interact with one another or others outside of the[ir] sight"; (2) complete a parenting capacity assessment that included a full psychological evaluation and follow the recommendations made in the report; (3) obtain and maintain suitable housing for themselves and their children, with working utilities; (4) complete a written budget, submit it for review, and "fully participate" in budgeting services; and (5) cooperate with "case planning" and with their social worker and the children's guardian ad litem.
F. The Parents' Progress under the Case Plan
The parents attended scheduled supervised visitations with the children, but missed visits in December 2011 and arrived late to others. C.L.W. left some visits early to hang out at N.L.A.'s employment. Because the parents rented an apartment, which was clean, and made some progress with their case plan, unsupervised visits and overnights were eventually permitted in February 2012 and continued until May 2012. The unsupervised visits with the parents were discontinued and supervised visits were ordered after the foster mother observed that following visits with their parents, the children were using inappropriate language and again hoarding food, the eldest child was having frequent nightmares, the younger two children began to engage in inappropriate sexual behavior, and fecal matter was discovered on the youngest child. The children also reported that they were watching movies on television that were inappropriate for their age. At the same time, the children's therapist observed that the older children regressed in their progress in play therapy. The parents' visits with the children were still being supervised at the time of the termination of parental rights trial.
The in-home therapist requested that the parents telephone their children two to three times during the week so as to make the transition between their parents and the foster home less stressful. However, the parents, who expressed some agitation at this request, failed to make the telephone calls to their children, claiming that they were too busy. As a result of their lack of cooperation, the therapist informed the parents that they had made insufficient progress and when they were not able to prove that they had telephoned the children, she terminated her services.
One of the primary goals of the case plan was that the parents were to obtain clean and safe housing for the children and have some financial stability. After the removal of the children, the parents moved to an apartment, but were evicted six months later for non-payment of rent and utilities. They subsequently bought a house on a contract for deed, with a $500 down payment, in Martin County. The house had a flooded basement, no running water, no heat, and needed substantial repairs. Although they had made extensive repairs to the home, there was still no heat in the home at the time of the termination of parental rights trial. N.L.A. admitted that even though the monthly payment on the contract for deed was $454, he was either late or behind on the payments. Because the parents did not have sufficient funds to install a heating system in the home, they were using space heaters throughout the house, even though such heaters presented some risk of injury to their three active boys.
At the trial in October 2012, with winter imminent, the parents were not able to present a plan for the installation of a home heating system. Because N.L.A. only earned $1, 500 per month with monthly expenses totaling $1, 861 for himself and C.L.W., he did not have any explanation as to how they would be able to pay for a system, which could cost as much as $5, 000, before winter.
In light of this shortfall and the costs of repairs, N.L.A. was questioned about whether they exercised appropriate judgment when purchasing the home. N.L.A. explained that he could obtain public assistance to help him make his payments but did not specify that he had made any applications for any specific assistance or that he was aware of whether he qualified for assistance. There was testimony during the trial that the parents had failed to timely apply for and provide requested verifications for medical assistance and other public benefits. As a result, assistance and benefits were either denied or delayed. Also, the parents indicated that one of the reasons that they purchased the home was that they expected that the child protection case would be transferred from Jackson County to Martin County, where they would be treated more fairly.
There were concerns raised by the mental health providers and social workers regarding the parents' lack of cooperation with services. N.L.A. complained that he "didn't see a reason to be in therapy" and later quit individual therapy sessions because he did not get anything out of it and thought that "[t]he results of the parental capacity assessment didn't connect with him at all." He initially scheduled 10 sessions of individual therapy beginning in March 2012, but failed to meet the goal of meeting once per week.
The clinical psychologist who performed the parenting assessment indicated that N.L.A. made little progress. She noted that even though he had attended some parenting classes, she had concerns about whether he could adequately supervise the children given his lack of insight into his and his children's issues and his resistance to change. C.L.W.'s clinical psychologist, who began treating her in February 2011, reported that C.L.W. attended her weekly appointments and was generally cooperative until the summer, when she missed six appointments and did not attend any sessions during the month of July. C.L.W. also did not attempt to make any appointments or participate in any therapy during the five or six weeks preceding trial. C.L.W. also failed to complete the educational component of her anger management program regarding the identification of risk factors for anger outbursts. During the play therapy sessions, C.L.W. participated in three sessions with the middle child. She discontinued the sessions, claiming that she had a job. She later confessed that she lied about having a job.
The in-home therapist visited the home once per week, but the parents missed a session in late May and in late June 2012, leaving approximately one month without a session. The therapist reported that she had difficulty contacting the parents during this period. They were not completely cooperative after re-connecting in late June and appeared "kind of . . . annoy[ed]" that they had to participate in the therapy sessions. She stressed the heightened level of supervision needed to address the children's sexual behavior, including splitting supervision time and obtaining help from others, but recalled that the parents expressed frustration about the safety plan. C.L.W. expressed concern that it is impossible to watch the children 24 hours a day. During an in-home therapy session, the therapist observed the parents allowing the children to go unsupervised into a dark bathroom with young cousins. On another occasion, it was reported by one of the children that they were not supervised during a visit when their mother lay on a couch with a headache.
On July 11, 2012, the case worker wrote the parties a letter addressing their ongoing failure to sufficiently comply with their case plan. The letter cites inconsistent appointment attendance, late arrival at visits, unpaid bills, failure to establish a home suitable for the children, not following through with suggestions from service providers, and C.L.W.'s failure to pursue her GED and obtain employment. She also cited the parent's budget and an inability "to provide for the emotional needs of their children, specifically [the middle child]." The case worker also noted the parent's lack of commitment to individual therapy and dishonesty.
A number of mental health professionals, social workers, and N.L.A.'s father claimed that C.L.W. was dishonest. C.L.W.'s psychologist recalled a number of instances when C.L.W. was not truthful to her, specifically about her employment status and whether water had been turned on in their house in Martin County. This made it difficult for her to believe that C.L.W. was being honest about her progress on her case plan. She also noted that C.L.W. had not accepted responsibility for the children's removal from her care, instead blaming county services and the condition of the house upon the other two adults who were living in the house. The foster mother also observed that C.L.W. claimed that the oldest child did not have rotten teeth when he was with her, suggesting that his molars had suddenly deteriorated while he was in the foster mother's care. C.L.W. also claimed that she was not aware of any sexual behaviors of her children, and when confronted with the numerous reports of such behavior, indicated that the children's cousin, who was only slightly older than the middle child, was responsible. C.L.W.'s psychologist noted that because of these issues surrounding C.L.W.'s honesty and the parents' lack of insight, she was concerned that the parents might not be willing to report the sexual behavior or financial trouble. C.L.W. also testified at trial that she was being treated for cervical cancer. However, when Jackson County confronted her with evidence that the treatment facility that was purportedly providing such treatment had no record that she was a patient, she admitted that she was not scheduled for such treatment.
G. Testimony Regarding the Return of the Children
At trial, the psychologists, the children's therapist, the in-home counselor, and the guardian ad litem testified that it was not in the children's best interests for them to be returned to the care of their parents. Reasons given for these opinions included the lack of clean, safe, and stable housing for the children. One psychologist noted that the parents' pattern of abruptly moving from residence to residence, including the move from a suitable apartment to an uninhabitable house, exhibited "generally poor decision making or impulsivity." There was also a concern about the parents' lack of understanding of their children's needs, particularly regarding their need for increased supervision under the safety plan. Both parents stated that they had not seen the children's sexual behaviors and were skeptical whether the children actually had such behaviors. According to the psychologist, it was this skepticism that lessened their resolve to address their children's need for constant supervision and resulted in several lapses in supervision of the children during visits. Also, there was a concern about the lack of progress demonstrated by the parents relative to their case plan.
The district court found that while the parents did comply with some of the court-ordered requirements for reunification of the parents with their children, they failed to complete many other requirements. Finding that there was clear and convincing evidence that the parents substantially, continuously, or repeatedly refused or neglected to comply with their parental duties, the district court ordered their parental rights to be terminated pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8). The district court later denied the parents' motion for a new trial. This appeal follows.
This court reviews a district court's termination findings to determine whether they address statutory criteria for termination and are not clearly erroneous. In re Children of T.R., 750 N.W.2d 656, 660 (Minn. 2008). "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." Id. at 660–61 (quotation omitted). We review for an abuse of discretion whether a particular statutory basis for involuntarily terminating parental rights is present. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901 (Minn.App. 2011), review denied (Minn. Jan. 6, 2012). "[A]n order terminating parental rights is appropriate only if it appears that the condition of dependency or neglect will continue for a prolonged, indefinite period of time . . . ." In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). The petitioning county bears the burden of proving grounds for termination. In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn.App. 1999).
"The juvenile court may upon petition, terminate all rights of a parent to a child" if it finds:
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, 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 . . . .
Minn. Stat. § 260C.301, subd. 1(b)(2) (2012). "Failure to satisfy requirements of a court- ordered case plan provides evidence of a parent's noncompliance with the duties and responsibilities under section 260C.301, subdivision 1(b)(2)." In re Welfare of Children of K.S.F., 823 N.W.2d 656, 666 (Minn.App. 2012). The district court's termination order includes a detailed analysis of the case plan and its requirements. Based on our careful review of the entire record, we conclude that clear and convincing evidence supports the district court's findings and that termination of the parental rights of N.L.A. and C.L.W. pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2) was not an abuse of discretion.
The primary argument advanced by the parents is that the record does not support by clear and convincing evidence that they refused or neglected to comply with the duties imposed upon them by the parent and child relationship. However, in its thorough 47-page order, the district court painstakingly set forth the facts which supported the conclusion that there was clear and convincing evidence of parental neglect under Minn. Stat. § 260C.301, subd. 1(b) and that such termination was in the best interests of the children. There was no dispute in the record that the children were initially removed from a home that was unfit for the children. But the parents argue that the record does not contain clear and convincing evidence that their current Martin County home is unclean or unsuitable for the children. As noted by the district court, in an order issued soon after the children were removed from their care, the parents were required under their case plan to obtain and maintain suitable housing with working utilities. Yet, the parents' "move to the home in Sherburn without utilities violated the disposition order." The district court explained:
The parents' decision to move into a home unsuitable for small children continues their pattern of impulsive moving and living in inappropriate and unstable homes. Ultimately, [the] move prioritized the house over their children, and demonstrated these parents' failure to recognize their children's needs and their failure to place those needs before their own interests. [The parents'] choice to focus all their efforts, time, and financial resources on their house in Sherburn rather than on their children made reunification with the children nearly impossible. Because [the parents] are close to defaulting on their contract for deed and are behind on their utility payments, their ability to have a stable home with working utilities is at risk.
Contrary to the parents' argument and as demonstrated by this finding, the district court did not err by focusing upon the condition of the home from which the children were removed, but instead focused upon the condition of their home at the time of trial. See In re Welfare of Child of J.K.T., 814 N.W.2d 76, 90 (Minn.App. 2012) (holding that district court findings must focus on conditions which exist at the time of the trial).
There was also clear and convincing evidence supporting the district court's finding that the parents continued "to struggle with their finances despite not having to provide for their three children." Even though the parents were provided financial management classes and resources, they were not able to pay their bills or maintain a balanced budget. In violation of the district court's order, the parents failed to submit a written budget and failed to submit the receipts of bills paid or attend the bi-weekly appointments with a financial counselor. As a result, as was demonstrated during their testimony at trial, the parents neither understood how to handle their finances or have a balanced budget nor were they able to demonstrate the skills they had been taught.
There is also clear and convincing evidence supporting the district court's findings that the parents are unwilling or unable to meet the children's emotional needs. Although a safety plan for the children was set up, the parents, demonstrating a lack of insight regarding the seriousness of their children's behavior, remained skeptical about the need for the plan and claimed it was impossible to follow. As a result, even though they had limited visits with the children, there were reports of numerous instances of lapses in their supervision. The district court then cited several examples when the parents did not comply with the safety plan requirement of constant supervision. To the extent that there may have been a fact dispute concerning whether appellants provided adequate supervision at certain times during visits, the district court credited witnesses who recounted instances of inadequate supervision. An appellate court defers to the district court's assessment of witness credibility. In re Welfare of M.D.O., 462 N.W.2d 370, 374–75 (Minn. 1990).
The district court found that the parents "demonstrated an unwillingness to make the necessary changes in the parenting styles to meet their children's emotional needs." The record is replete with evidence of the parents' failure to comply with their case plan, which was designed to give the parents the knowledge and skills to deal with their own financial and personal issues so that they would be better able to deal with the emotional needs of their troubled children. More significantly, the parents failed to cooperate with the children's therapist or the in-home therapist in addressing and responding to the children's emotional needs. When the in-home therapist advised them how important it was that they telephone the children between visits, the parents failed to even perform this very simple act of making a telephone call for the benefit of their children's emotional health. Rather than cooperate with the case plan, the parents, particularly C.L.W., persisted in being untruthful to county officials and service providers. The district court reasonably noted that C.L.W.'s "dishonesty caused distrust between [C.L.W.] and the social worker and providers, and hindered her progress on the case plan, " and also "made it difficult to monitor [the parents'] compliance with the case plan."
As a whole, the record contains clear and convincing evidence supporting the district court's conclusion that the parents have repeatedly failed to provide their children with necessary shelter "and other care and control necessary for the child[ren]'s physical, mental, or emotional health and development, if . . . physically and financially able, " as set forth in section 260C.301, subdivision 1(b)(2). Even though respondent has provided the family with an array of services and resources for over a year, and the parents had the physical and financial ability to support the children, they have repeatedly failed to perform their duties as parents in meeting their children's needs.