In the Matter of the Welfare of the Children of: E. M. U. and W. H. H., Parents. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0183
In the Matter of the Welfare of the Children of:
E. M. U. and W. H. H., Parents.
Filed July 20, 2015
Affirmed
Kirk, Judge
Anoka County District Court
File Nos. 02-JV-13-1440, 02-JV-14-1012
Patricia A. Zenner, Stillwater, Minnesota (for appellant E.M.U.)
Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent Anoka County)
Judi Albrecht, Eagan, Minnesota (guardian ad litem)
Alisha Olmstead, Ramsey, Minnesota (guardian ad litem)
Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant-mother challenges the district court’s order terminating her parental
rights. We affirm.
FACTS
Appellant-mother E.M.U. is the biological mother of fourteen-year-old N.J.U. and
two-year-old B.M.H.-U. N.J.U.’s father is deceased, and B.M.H.-U.’s father is W.H.H.
E.M.U. and W.H.H. divorced in September 2013.1
A five-day trial was held in December 2014, where E.M.U. was present and
represented by legal counsel. On January 16, 2015, the district court issued amended
findings of fact and conclusions of law, finding that there was clear and convincing
evidence supporting the termination of E.M.U.’s parental rights to B.M.H.-U. under
Minn. Stat. § 260C.301, subds. 1(b)(1), (2), (4), (5), (6), (8) (2014). The district court
ordered N.J.U. to be placed in long-term foster care. The district court’s post-trial
findings of fact are summarized below.
In October 2013, B.M.H.-U. was hospitalized for a blood and urinary tract
infection and E.M.U. and N.J.U. stayed with B.M.H.-U. in her hospital room. Hospital
staff observed that E.M.U. failed to provide appropriate care to B.M.H.-U. Staff
repeatedly found B.M.H.-U. in a wet diaper or covered in feces while E.M.U. slept
through multiple loud alarms indicating that B.M.H.-U. was in need of immediate care.
E.M.U. also failed to comply with staff instructions on how to feed B.M.H.-U.
On October 17, Anoka County Social Service (ACSS) placed a 72-hour police
hold on B.M.H.-U., and a few days later filed a child-in-need-of-protection-or-services
petition regarding B.M.H.-U. and N.J.U. On December 10, the district court adjudicated
1
On January 16, 2015, the district court terminated W.H.H.’s parental rights to
B.M.H.-U.
2
B.M.H.-U. in need of protection or services and transferred custody of the child to the
county while N.J.U. was allowed to remain at home with E.M.U. under protective
supervision by the county. The district court ordered E.M.U. to cooperate with county-
referred services including a parenting assessment, assistance from a public health nurse,
a psychological evaluation, and in-home services. E.M.U. agreed to cooperate with the
service providers.
During the next several months, E.M.U. met with numerous county-referred
service providers who separately documented their concerns about her parenting abilities.
The county conducted a parenting assessment indicating that E.M.U.’s mental health was
a significant concern, as it negatively impacted her ability to parent her children. The
assessment recommended that if E.M.U.’s mental health did not stabilize, the county
should consider alternative placement options for B.M.H.-U. A mental-health
practitioner who met weekly with E.M.U. for approximately six months to assist E.M.U.
in improving her parenting skills testified at the termination-of-parental-rights trial that
she believed that E.M.U. needed long-term psychiatric care, and that she was unable to
parent B.M.H.-U. on a daily basis. An evaluator who completed an attachment
assessment of B.M.H.-U.’s relationship with E.M.U. concluded that B.M.H.-U. was at
tremendous risk for future developmental problems if she was returned to E.M.U.’s care.
The evaluator also noted that N.J.U.’s relationship with E.M.U. was emotionally
incestuous. The evaluator recommended that both children be permanently placed
outside of E.M.U.’s custody. E.M.U. also completed a psychological evaluation and the
psychologist diagnosed E.M.U. with schizotypal personality disorder and unspecified
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attention deficit hyperactivity disorder. In light of this mental-health diagnosis, the
psychologist characterized E.M.U.’s prognosis as “poor.”
In January 2014, E.M.U. and N.J.U. became homeless. With the assistance of
E.M.U.’s case manager, E.M.U. and N.J.U. relocated to a transitional housing complex
for individuals with mental illness. But shortly after they moved in, housing staff notified
E.M.U.’s case manager about their concerns regarding E.M.U.’s odd behaviors, which
included E.M.U. reporting hearing and seeing things that were not real. In April 2014,
E.M.U. agreed to go to the hospital for a mental-health evaluation and N.J.U. was placed
on a police hold and in foster care. After an emergency hearing, the district court
concluded that N.J.U. continued to be a child in need of protection or services and
continued his placement in foster care.
While hospitalized, E.M.U. was diagnosed with borderline personality disorder.
In her discharge report, her psychiatrist recommended that she participate in an extensive
dialectic behavioral theory (DBT) program, visit a therapist and psychiatrist, avoid
alcohol, drugs, and visit a pain specialist. But E.M.U.’s mental health continued to
degenerate. Approximately one week after being discharged from the hospital, E.M.U.
received opioid drugs for pain management at a different hospital. From April through
September, E.M.U. failed to attend all but one session of DBT therapy. On April 28,
police and an ambulance were dispatched to E.M.U.’s residence after E.M.U. was
reportedly knocked unconscious when a box spring fell on her head. E.M.U. reported to
ACSS that the incident negatively impacted her memory and that she could not remember
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appointments and previous conversations. E.M.U. continued to seek and obtain opioid
pain medications for a variety of physical ailments from various hospitals.
On August 13, Anoka County filed a petition to terminate E.M.U.’s parental rights
to both children. One week later, E.M.U. attempted to commit suicide. E.M.U. was
placed on a 72-hour hold and was transported to the hospital where a staff psychiatrist
determined that E.M.U. was at high risk for further suicide attempts and recommended
civil commitment. During her stay, E.M.U. attempted to cut herself with a plastic knife.
The hospital petitioned for commitment. A licensed psychologist who completed a court-
ordered examination of E.M.U. opined that she could be released to her sister’s care and
that she could be considered a candidate for a stay of commitment to access
recommended psychiatric and therapeutic services.
On September 16, the district court held a hearing on the hospital’s petition for
judicial commitment and found that E.M.U. was mentally ill with diagnoses of mood
disorder, not otherwise specified, and borderline personality disorder. The district court
stayed E.M.U.’s civil commitment for six months on the following conditions: that
E.M.U. follow the recommendations of her treatment team; schedule and attend
appointments with a psychiatrist as recommended by the treatment team; take all
prescribed medication; schedule and attend DBT therapy and any aftercare treatment;
refrain from using alcohol or mood-altering chemicals; and submit to one provider for
medical medications and one provider for psychiatric medications.
One month later, the district court revoked its stay of commitment, finding that
E.M.U. violated its conditions by twice failing to show up for group treatment, failing to
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take her medications as prescribed, and not attending her individual therapy or psychiatry
appointments. The district court concluded that E.M.U. satisfied the statutory criteria for
civil commitment and ordered her to be committed to the Commissioner of Human
Services for treatment. The district court ordered E.M.U. to remain hospitalized pending
an opening at a designated facility.
The psychiatrist who tended to E.M.U. while she was civilly committed testified at
trial that she continued to report unsubstantiated medical issues to hospital staff, had
“boundary issues” with other patients, and displayed hyper moods and intrusive
behaviors. A mental-health worker, who was assigned to manage E.M.U.’s stay of
commitment, testified at trial that E.M.U. had physically assaulted a nurse and was
restrained after hospital staff attempted to separate her from a male patient on the ward.
The mental-health worker testified that E.M.U. was “constantly having to be reminded
about her behaviors and [was] not controllable.”
At the time of trial, B.M.H.-U. and N.J.U. had been in foster care for
approximately 14 months and eight months, respectively. On October 9, 2014, the
guardian ad litem reported to the district court that both children were doing well in foster
care. B.M.H.-U. was “developing a strong attachment and bond” with her foster parents,
no longer suffered from the constant medical problems she had experienced under
E.M.U.’s care, and was developmentally “on track” according to her pediatrician. N.J.U.
was getting along with his peers at school and in his foster home and was no longer
focused on germs or other health concerns as he had been while in E.M.U.’s care.
E.M.U. appeals.
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DECISION
I. E.M.U.’s due-process rights were not violated when the district court
addressed bases for termination of her parental rights not pleaded in the
petition.
“[P]arental rights may be terminated only for grave and weighty reasons.” In re
Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004). Minn. Stat.
§ 260C.301, subd. 1(b) (2014), states that “[t]he juvenile court may upon petition,
terminate all rights of a parent to a child . . . if it finds that one or more of the [statutory
grounds for termination] exist.” The “best interests of the child” are the “paramount
consideration” in a termination of parental rights proceeding. Id., subd. 7.
“Whether a parent’s due process rights have been violated in a termination
proceeding is a question of law, which this court reviews de novo.” In re Welfare of
Children of B.J.B., 747 N.W.2d 605, 608 (Minn. App. 2008). “[T]ermination of parental
rights cannot be based on a statutory ground that was not included in a petition to
terminate parental rights.” In re Welfare of Child of B.J.-M., 744 N.W.2d 669, 673
(Minn. 2008).
E.M.U. argues that her due-process rights were violated because the county only
alleged two grounds for terminating her rights under Minn. Stat. § 260C.301, subds.
1(b)(4) and 1(b)(5). But the district court found that there was clear and convincing
evidence to terminate her parental rights under these two statutory provisions and
additional subdivisions of the statute.
We conclude that because the district court found clear and convincing evidence
supporting at least one statutory provision alleged in the county’s petition, E.M.U.’s due-
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process rights were not violated by the district court’s inclusion of additional grounds
supporting the termination of E.M.U.’s parental rights. See In re Welfare of Child of
T.D., 731 N.W.2d 548, 556 (Minn. App. 2007) (holding that, although the district court
erred in finding additional statutory grounds for terminating parental rights not alleged by
the county, “because at least one statutory ground supports termination in this case, . . .
the error does not affect our decision to affirm the termination of T.D.’s parental rights”).
II. The district court did not err by finding clear and convincing evidence that
E.M.U. is palpably unfit to parent.
Whether to terminate parental rights is discretionary with the district court. In re
Welfare of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014). Similarly, whether a specific
statutory basis for terminating parental rights is present in a particular case is a decision
that is also discretionary with the district court. See In re Welfare of J.R.B., 805 N.W.2d
895, 899-902 (Minn. App. 2011) (explaining the process the district court goes through
when determining whether a statutory basis for terminating parental rights is present in a
particular case and that this decision is discretionary with the district court), review
denied (Minn. Jan. 6, 2012); see Minn. Stat. § 260C.301, subd. 1(b) (2014) (listing
statutory bases for terminating parental rights).
The petitioning county bears the burden of proving grounds for termination by
clear and convincing evidence. In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App.
1999). On appeal, we review the record to determine whether the district court applied
the appropriate statutory criteria and made findings that are not clearly erroneous. In re
Welfare of D.L.R.D., 656 N.W.2d 247, 249 (Minn. App. 2003). A finding is clearly
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erroneous when “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). We grant the district court’s
decision considerable deference because the “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).
A district court may terminate parental rights to a child if the court finds that the
parent
is palpably unfit to be a party to the parent and child
relationship because of 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.
Minn. Stat. § 260C.301, subd. 1(b)(4). The county “must prove a consistent pattern of
specific conduct or specific conditions existing at the time of the hearing that appears will
continue for a prolonged, indefinite period and that are permanently detrimental to the
welfare of the child.” T.R., 750 N.W.2d at 661 (quotation omitted). In a termination
case, the district court “relies not primarily on past history, but ‘to a great extent upon the
projected permanency of the parent’s inability to care for his or her child.’” In re
Welfare of Solomon, 291 N.W.2d 364, 368 (Minn. 1980) (quoting In re Welfare of Kidd,
261 N.W.2d 833, 836 (Minn. 1978) (emphasis added)).
E.M.U. argues that the district court failed in its findings to account for the fact
that her mental illness had been historically inaccurately diagnosed, but at the time of the
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trial she was receiving appropriate care for her mental-health issues and could parent her
children.
The district court concluded that E.M.U. was palpably unfit to parent because her
borderline personality disorder diagnosis requires “lengthy residential treatment and a
program of DBT which may encompass up to two years if [E.M.U.] is consistent and
cooperative with treatment. In the past, she has not shown that she can consistently
address her treatment needs on a voluntary basis.”
The district court did not abuse its discretion when it concluded that E.M.U. is
palpably unfit to parent B.M.H.-U. and N.J.U. E.M.U. has a long history of mental-
health issues, including borderline personality disorder, which is defined under
Minnesota statute as a serious and persistent mental illness under certain circumstances.
See Minn. Stat. § 245.462, subd. 20 (2014). E.M.U.’s mental illness negatively impacted
her ability to effectively parent B.M.H.-U. and N.J.U. At trial, the psychologist testified
that E.M.U. had a “moderately severe” diagnosis of borderline personality disorder and
would need at least nine to 15 months of DBT therapy after her civil commitment ended.
The psychologist cautioned that the timeline was predicated on E.M.U. constantly
attending her DBT therapy sessions. But E.M.U. demonstrated strong resistance to
complying with recommended treatment. In April 2014, E.M.U. failed to follow the
psychiatrist’s orders to attend DBT therapy. E.M.U. also violated the stay of her civil
commitment by refusing to follow through with her recommended treatment program,
which included continued attendance and participation in therapy and avoidance of
unprescribed prescription medication. Moreover, hospital staff reported that during
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E.M.U.’s civil commitment, she remained uncontrollable and displayed perseverative
behaviors relating to various medical complaints. The record supports the district court’s
determination that E.M.U. failed to successfully address her mental-health issues during
the pendency of the trial, and that she will continue to be unfit to parent for the
foreseeable future. Therefore, we conclude that the district court did not abuse its
discretion by invoking the palpable unfitness basis to terminate E.M.U.’s parental rights.
III. The district court did not clearly err by finding clear and convincing evidence
that reasonable efforts failed to correct the conditions leading to the foster
care placement of the children.
In a termination of parental rights proceeding, the district court is required to make
findings of fact addressing the reasonable efforts provided by social services to reunite
the family, or to find that such efforts would be futile. In re Children of T.A.A., 702
N.W.2d 703, 709 (Minn. 2005); see also Minn. Stat. §§ 260.012, 260C.301, subd. 8
(2014). In making this determination, the district court must consider numerous factors,
including the services’ relevancy to the safety and protection of the child, adequacy,
availability, accessibility, consistency, and whether the services were realistic under the
circumstances. Minn. Stat. § 260.012(h).
E.M.U. argues that the district court erred in not affording her the opportunity to
parent her children following her civil commitment. E.M.U. contends that she was
“undergoing a temporary mental-health crisis” due to her prescribed medications. In
support of her argument, E.M.U. points to the fact that she had properly cared for N.J.U.
up to his placement in foster care, that she functioned much better when she was not
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prescribed Klonopin, and that her sister and longtime friend testified at trial that she was
a good parent prior to her recent hospitalizations.
The district court concluded that further efforts would be futile and unreasonable
because E.M.U. “has repeatedly refused or neglected to comply with the duties imposed
upon the parent and child relationship” including providing the necessary care and
control of the child’s mental, physical, and emotional development. The district court
described reasonable efforts by ACSS, including utilizing social workers, psychologists,
in-home services, a parenting assessment, public-health nursing, transitional housing
staff, an attachment assessment, mental-health workers, and hospital staff.
The district court’s determination is supported by clear and convincing evidence.
Over a 14-month period, E.M.U. received intensive, one-on-one parenting training and
education, but was unable to appropriately parent B.M.H.-U. N.J.U. was also negatively
impacted by E.M.U.’s poor parenting and was academically behind after three years of
homeschooling. In addition, E.M.U. failed to take her mental-health therapy seriously, as
she consistently missed appointments, to the detriment of herself and her children.
Despite the fact that Mercy Hospital staff took E.M.U. off many opioid pain medications
and the district court stayed her civil commitment on the condition that she refrain from
mood-altering chemicals, E.M.U. continued to seek and acquire opioid painkillers.
E.M.U.’s history of non-compliance with treatment providers made it impossible
for her case manager to find a treatment program willing to collaborate with her. As a
result, E.M.U.’s mental health deteriorated to the point that she was civilly committed,
where she continued to demonstrate lack of control and mental-health issues at the time
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of trial. There is no statute or caselaw requiring the district court to give E.M.U. another
opportunity to parent her child after release from civil commitment. Moreover, the
district court found the testimony of E.M.U.’s sister and longtime friend to be not
credible. This court defers to the district court’s credibility determinations. L.A.F., 554
N.W.2d at 396.
IV. The district court did not abuse its discretion by finding that it was in
B.M.H.-U.’s best interests for E.M.U.’s parental rights to be terminated.
The district court may terminate all rights of a parent to a child on one or more of
nine statutory grounds. B.J.-M., 744 N.W.2d at 672. Appellate courts review the district
court’s parental-rights determination for an abuse of discretion. J.R.B., 805 N.W.2d at
900. In analyzing the child’s best interests, “the court must balance three factors: (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.” In
re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). “Competing interests include
such things as a stable environment, health considerations and the child’s preferences.”
Id. “An appellate court may affirm a termination of parental rights if at least one
statutory basis for termination is present and termination is in the children’s best
interests.” J.R.B., 805 N.W.2d at 906.
E.M.U. argues that there is substantial evidence in the record demonstrating that it
is not in the best interests of the children to terminate her parental rights because she is
able to parent when she does not suffer from mental illness. E.M.U. contends that at the
time of trial, her mental health had stabilized and that she had agreed to short-term
13
continued care at Anoka Metro Regional Treatment Center. E.M.U. relies on In re
Welfare of M.A. to argue that the district court could not hold her civil commitment at the
time of trial against her because, in her words, “the inability to return a child immediately
to the parental home cannot provide the basis of terminating parental rights.” 408
N.W.2d 227, 233 (Minn. App. 1987) (stating that “there is no legal basis for granting
termination solely because the child cannot be returned immediately to the parental
home”), review denied (Minn. Sept. 18, 1987). Moreover, E.M.U. contends that there is
substantial evidence that she was a good mother to N.J.U. prior to her recent
hospitalizations. E.M.U. requests that this court remand the case to the district court and
that it continue as a CHIPS proceeding.
The district court determined that termination of E.M.U.’s parental rights served
the child’s best interests, stating “the [c]ourt has considered the interests of the parents
and the child in preserving the relationship. The child’s needs for stability, safety, and
permanency, with nurturing, competent caregivers outweighs any competing interests of
the parents.”
Here, the district court did not abuse its discretion in ruling that termination of
appellant’s parental rights is in the child’s best interests. J.R.B., 805 N.W.2d at 906.
Numerous mental-health and service providers and the children’s guardian ad litem all
concluded from their observations that B.M.H.-U. was disattaching from E.M.U., who
was unable to read B.M.H.-U.’s cues and could not properly parent her. Moreover, the
evaluator who completed the attachment assessment warned that B.M.H.-U. was at
tremendous risk if E.M.U. continued to parent her, and that N.J.U. had become
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emotionally disturbed while under E.M.U.’s care. At the time of trial, B.M.H.-U. was 21
months old and had spent more than half of her life in foster care, where she was thriving
and was no longer demonstrating the medical issues that E.M.U. insisted were present
while under her care.
Affirmed.
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