In the Matter of the Welfare of the Child of: D. S., Parent. ( 2016 )

This opinion will be unpublished and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
A16-0020
In the Matter of the Welfare of the Child of: D. S., Parent
Filed June 6, 2016
Affirmed
Peterson, Judge
Hennepin County District Court
File No. 27-JV-14-8215
Mary F. Moriarty, Hennepin County Chief Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant father D.S.)
Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Services and Public
Health Department)
Shirley A. Reider, St. Paul, Minnesota (for guardian ad-litem)
Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant father challenges the termination of his parental rights. Because there is
clear and convincing evidence to support the district court’s determination that the county’s
reasonable efforts did not correct the conditions that led to the child’s out-of-home
placement and that termination is in the child’s best interests, we affirm.
FACTS
D.A.S. was born in 2014, and he has never lived with his parents. D.A.S.’s mother,
E.A.N., has a history of chemical abuse and was using drugs while pregnant. The child
tested positive for cocaine at birth and has lingering medical conditions from this
exposure.1 Following an expedited permanency petition and hearing four days after his
birth, D.A.S. was placed in foster care.
E.A.N. was presumed palpably unfit to parent D.A.S. due to the prior involuntary
termination of her parental rights to other children. Following a permanency trial, E.A.N.’s
parental rights to D.A.S. were terminated in May 2015.
D.A.S.’s father, appellant D.S., was incarcerated on pending criminal charges when
D.A.S. was born. Appellant was furloughed for ten days after the birth and later testified
at trial that he visited D.A.S. twice during that period; he also completed genetic testing to
determine his parentage to D.A.S., as ordered by the district court.
Appellant’s criminal convictions include the following offenses: fifth-degree
controlled-substance offense in 2012; second-degree controlled-substance offense (sale) in
2014; and third-degree controlled-substance offense (possession of cocaine) in 2014. For
the 2014 convictions, the district court imposed concurrent sentences of 59 months and 45
months. Appellant began serving sentences for the most recent offenses in January 2015,
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D.A.S. continues to have symptoms that include shaking and inability to sleep at night,
and the child has received treatment from a neurologist, a physical therapist, and an
occupational therapist. According to the guardian ad litem, D.A.S. needs “constant care”
and “constant supervision.”
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and between that date and November 2015 he was transferred among prisons in St. Cloud,
Stillwater, and Moose Lake.
Respondent Hennepin County Human Services and Public Health Department
(county) offered appellant a case plan when D.A.S. was placed out of home in December
2014, and began a kinship study. The district court held interim hearings on the case in
April, June, and August, 2015. Initially, appellant identified two paternal relatives who
could potentially care for D.A.S., and in June, appellant identified Melanie Brookins (a/k/a
Melanie Brooks), his fiancé who lives in Michigan, as a possible care provider. Because
of permanency considerations for D.A.S., the district court set the matter on for trial when
it became aware that appellant’s entry date into the Challenge Incarceration Program (CIP)
“boot camp” was delayed until September 2015. Completing CIP could have permitted
appellant to be released from prison in the spring of 2016 rather than on his projected
release date of August 2017.
At the November 9, 2015 permanency trial, the district court received evidence of
the county’s actions during the first 11 months of D.A.S.’s life, and heard testimony from
a social worker, the guardian ad litem, and appellant. Following trial, the district court
terminated appellant’s parental rights on the statutory grounds of neglecting to comply with
the duties of the parent and child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2)
(2014); failure of reasonable efforts under the direction of the court to correct the conditions
that led to D.A.S.’s out-of-home placement despite the county’s reasonable efforts, Minn.
Stat. § 260C.301, subd. 1(b)(5) (2014); and D.A.S.’s remaining neglected and in foster
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care, Minn. Stat. § 260C.301, subd. 1(b)(8) (2014). Following the denial of his motion for
a new trial or amended findings, appellant brought this appeal.
DECISION
Whether to terminate a parent’s parental rights is discretionary with the district
court. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014). Similarly,
whether a statutory basis to terminate parental rights exists is committed to the discretion
of the district court. In re Welfare of J.R.B., 805 N.W.2d 895, 900 (Minn. App. 2011),
review denied (Minn. Jan. 6, 2012). An appellate court reviews a district court’s decision
to terminate parental rights to determine whether the district court’s findings address the
statutory criteria and whether the district court’s findings are supported by clear and
convincing evidence. In re Welfare of Child of T.P., 747 N.W.2d 356, 362 (Minn. 2008).
This court “give[s] considerable deference to the district court’s decision to terminate
parental rights. But we closely inquire into the sufficiency of the evidence to determine
whether it was clear and convincing.” In re Welfare of Children of S.E.P., 744 N.W.2d
381, 385 (Minn. 2008) (citation omitted). If at least one statutory ground alleged in the
petition is supported by clear and convincing evidence and termination of parental rights
is in the child’s best interests, this court will affirm. In re Welfare of Children of R.W., 678
N.W.2d 49, 55 (Minn. 2004).
The “evidence must relate to conditions that exist at the time of the termination and
it must appear that the conditions giving rise to the termination will continue for a
prolonged, indeterminate period.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.
2001). The incarceration of a parent, alone, is an insufficient ground to terminate parental
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rights. In re Child of Simon, 662 N.W.2d 155, 162 (Minn. App. 2003). But “there is no
prohibition against terminating parental rights while the parent is in prison,” and the district
court can consider the imprisonment “in conjunction with other evidence supporting the
petition for termination.” Id.
Failure to correct conditions.
A statutory basis for terminating parental rights can exist if, after the child is placed
out of home, “reasonable efforts, under the direction of the court, have failed to correct the
conditions leading to the child’s placement.” Minn. Stat. § 260C.301, subd. 1(b)(5). In
determining whether reasonable efforts have been made, the district court must consider
“whether services to the child and family 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) (2014). “Reasonable efforts at rehabilitation are
services that go beyond mere matters of form so as to include real, genuine assistance.” In
re Welfare of Children of S.W., 727 N.W.2d 144, 150 (Minn. App. 2007) (quotation
omitted), review denied (Minn. Mar. 28, 2007). Appellant argues that the district court
erred in finding that the county made reasonable efforts to reunify him with D.A.S.
Essentially, appellant appears to argue that the district court terminated his parental rights
because of his incarceration without making a real effort to offer him services. He also
argues that the district court functionally treated him as if he had abandoned D.A.S. and
that this treatment was improper under the law.
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The district court found that appellant’s case plan required that appellant “sign
releases of information; establish paternity; obtain safe and suitable housing; engage in
parent education; communicate regularly with the [county]; ensure the child’s needs were
met; maintain contact with the child; and remain law abiding.” The district court found
that “the services offered [by the county] were realistic under the circumstances, and . . .
consider[ed] [appellant’s] incarceration.” The district court further found:
[Appellant’s] incarceration substantially interfered with his
ability to work a case plan to the [c]ourt’s satisfaction.
Although [appellant] was cooperative, signed releases of
information, and to the best of his ability remained in
communication with the [county], he was unable to engage in
parenting education, obtain safe and suitable housing, or
demonstrate that he could care for the day-to-day needs of his
child. The [county] did contact the [Minnesota] Department of
Corrections to assess what services were available to
[appellant] while he remained incarcerated, but discovered that
the only parenting education available to him was a group
program which he has not yet been able to participate in.
Under the circumstances, the [county’s] efforts were
reasonable and there is nothing more the [county] or the social
worker could have done to ensure that [appellant] was able to
meet all of the elements of his case plan. [Appellant] remains
unavailable to parent and has been unable to correct the
conditions that led to [D.A.S.’s] out of home placement.[2]
The main points of the case plan that appellant failed to satisfy were to be available
to parent D.A.S., to become educated as a parent, and to assist in ensuring that D.A.S. had
proper care and housing while appellant was incarcerated. As noted in the district court’s
2
The district court made particularized findings on the reasonableness of the county’s
efforts under a different statutory basis for termination, but incorporated those findings by
reference in reaching its decision to terminate appellant’s parental rights under Minn. Stat.
§ 260C.301, subd. 1(b)(5).
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findings, appellant met some aspects of his case plan that were directed at complying with
his parental duties: he acknowledged his paternity, and he expressed his love for and desire
to parent D.A.S. Appellant blames his lack of progress on external factors, but this
assertion is not supported by the record or by the district court’s findings. Although
appellant had to leave the CIP program because of an outstanding warrant for unresolved
traffic tickets in Michigan, he testified that he brought the warrant to the attention of the
CIP program in October 2015. By that time, he had been incarcerated for nine months.
Appellant testified that when the warrant became an impediment, he sought to plead guilty
to the Michigan offenses by mail, but the issue was unresolved at the time of the November
2015 trial. Given appellant’s uncertain prison release date, the district court did not err in
concluding that appellant was unable to parent at the time of the permanency trial and
would remain so for the reasonably foreseeable future.
With regard to appellant’s obtaining parenting education, the district court made the
following findings:
[Appellant] has not been able to engage in parenting education;
although he was on a wait list for group parenting education[,]
he was moved to a different institution before he could begin
the program. (Testimony of [appellant]). The [county]
inquired, but the [Minnesota] Department of Corrections
would not permit an outside contractor to provide parenting
services. (Testimony of [social worker]). The [county] asked
[appellant] to engage in parenting education because he has
three other children for whom he is not the primary caregiver,
and [appellant] would require additional parenting education to
learn to care for [D.A.S.’s] special needs. (Testimony of
[social worker]).
The record supports these findings.
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The record also supports the district court’s determination that appellant was not
able to ensure that D.A.S. had proper care while appellant remained incarcerated. At the
time of the permanency trial, D.A.S. had resided out of home for nearly a year. D.A.S. had
no parent, family member, or other person who could care for him during his father’s
incarceration. It appears that Brookins--a person whom appellant was dating but who lived
in Michigan, was a non-family member, and had never seen D.A.S.--was willing to provide
care for D.A.S. But she was first brought to the district court’s attention as a potential
caretaker in June 2015, and she was not licensed to provide foster care for D.A.S. at the
time of the November 2015 permanency trial. The district court concluded that appellant
“had options available to him for meeting [D.A.S.’s] needs while he remained incarcerated,
but did not put enough effort into any option in order to have the child placed with a relative
or his fiancé.”
Appellant argues that although the county never sought from the district court a
finding of futility of reasonable efforts, the county determined that he was unavailable to
parent and did not even attempt to have D.A.S. visit him in prison due to the child’s age.
But even if it were reasonable to arrange visits in prison, any visits would not have affected
appellant’s ability to ensure that D.A.S. had proper care while appellant remained
incarcerated. Maintaining a relationship with appellant was not an alternative to the care
that D.A.S. needed.
Although appellant argues that he “did everything he could do,” the record does not
show that his progress was sufficient or timely given D.A.S.’s need for permanency. While
appellant’s incarceration was not a per se reason for terminating his parental rights, his
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incarceration, considered together with the fact that there was not another relative who
could parent D.A.S. during his incarceration, fully supports the district court’s findings,
and its exercise of its discretion on this record to terminate appellant’s parental rights for
failing to correct the conditions that led to D.A.S.’s out-of-home placement. See S.E.P.,
744 N.W.2d at 386-87 (affirming termination of parental rights for failure to correct
conditions when parent failed to provide “adequate safe and stable housing” or “develop
necessary parenting skills,” even though children were not in out-of-home placement); cf.
In re Welfare of S.Z., 547 N.W.2d 886, 894 (Minn. 1996) (noting that for termination based
on palpable unfitness to parent, the parent’s inability “for the reasonably foreseeable future
to meet the ongoing physical, mental, and emotional needs of” the child supported
termination).
D.A.S.’s best interests.
Appellant argues that the district court’s best-interests analysis is affected by its
erroneous determinations on the reasonable efforts of the county. Because the county’s
efforts were reasonable and because the district court’s best-interests analysis is supported
by the evidence in the record and the district court’s findings, this argument lacks merit.
The district court fully evaluated D.A.S.’s best interests in reaching its decision.
Other arguments.
Appellant argues that the district court improperly relied on R.W., 678 N.W.2d at
49; In re the Welfare of the Children of A.I., 779 N.W.2d 886 (Minn. App. 2010); and In
re Children of Wildey, 669 N.W.2d 408 (Minn. App. 2003), aff’d as modified (678 N.W.
2d 49 (R.W.)). In A.I., this court discussed how a parent’s incarceration affected the parent
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in “acting in a parental role.” 779 N.W.2d at 891-92. There, the father had shot and killed
his wife, and this court discussed his incarceration in analyzing whether he was palpably
unfit to parent. Id. Even in that egregious factual setting, this court stated that
“[i]ncarceration alone does not necessarily preclude a person from acting in a parental
role,” but noted that the fact of incarceration is not “irrelevant” and that it “plainly creates
challenges and necessarily decreases an incarcerated person’s capacity to provide for day-
to-day needs.” Id. at 892. In citing A.I., the district court in this case was merely drawing
upon its broad principles and did not, as appellant asserts, improperly rely on a factually
inapposite case to reach an improper conclusion.
Similarly, in R.W. and Wildey, the underlying facts concerned issues of
abandonment and neglect in a scenario that included incarceration of a parent. The
supreme court addressed the children-neglected-and-in-foster-care statutory basis for
termination in R.W. and rejected a formulaic approach to address visitation and child-
support issues supporting reasonable-expectations findings for an incarcerated parent,
stating that reasonable expectations could “be answered by looking specifically at what
actions a parent has taken and the circumstances in which a parent finds himself or herself.”
678 N.W.2d at 57. When the same issue was before this court in Wildey, this court had
labeled the district court’s finding of parental desertion “predicated solely on the fact that
[the parent was] incarcerated” as “wrong as a matter of law” but was “unpersuaded” by the
district court’s suggestion in its findings that the parent’s intentional commission of crimes
could constitute an intentional step toward abandonment of a child. 669 N.W.2d at 414.
While some of the district court’s findings in this case were similar in tone to those rejected
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by this court in Wildey, the supreme court’s analysis in R.W. modified the approach taken
by this court in Wildey, and this case includes stronger evidence of permanency
considerations under the current statute as well as fewer efforts made by the incarcerated
parent. Therefore, neither R.W. nor Wildey dictates the outcome here.
Finally, although the other two statutory grounds for termination find support in the
record, we decline to address them individually because only one ground is necessary to
support termination. See R.W., 678 N.W.2d at 55.
Affirmed.
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