In the Matter of the Welfare of the Child of: P. J. M. and A. D. H., Parents.

This opinion will be unpublished and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
A15-0039
In the Matter of the Welfare of the Child of: P. J. M. and A. D. H., Parents
Filed June 15, 2002
Affirmed
Larkin, Judge
Hennepin County District Court
File No. 27-JV-14-5116
Mary F. Moriarty, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for appellant A.D.H.)
Michael O. Freeman, Hennepin County Attorney, Kacy Wothe, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services)
Lee P. Kratch, Hennepin County Public Defender, Minneapolis, Minnesota (for
respondent P.J.M.)
Bethany N. Mihalik, Bruce G. Jones, Faegre Baker Daniels LLP, Minneapolis, Minnesota
(for guardian ad litem Cathy Terp)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant-father challenges the district court’s order terminating his parental
rights. We affirm.
FACTS
Appellant-father A.D.H. is the biological father of A.H., a male child born on
November 24, 2013. A.H. was born prematurely at 31 weeks of gestation. At birth, A.H.
weighed 3.69 pounds and tested positive for cocaine. Medical staff immediately placed
A.H. in the Neonatal Intensive Care Unit (NICU) at Hennepin County Medical Center.
During the first week of December, A.H.’s mother, P.J.M., was no longer allowed to
breastfeed because toxicology testing of her breast milk showed the presence of cocaine.
A.H.’s urine also tested positive for cocaine.
A.H. remained in the hospital for 50 days. During that time, father was arrested,
along with mother and two other males, for loitering in Minneapolis. At the time of his
arrest, father possessed drug paraphernalia and told the police that he was a crack cocaine
addict with a “100 dollar a day habit.” From December 21 through January 5, 2014,
father did not visit A.H. in the NICU.
On January 9, respondent Hennepin County Human Services and Public Health
Department (department) filed a child in need of protection or services petition regarding
A.H. Three days later, A.H. was released from the hospital and placed in a nonrelative
foster home. On February 19, the district court adjudicated A.H. in need of protection or
services and transferred legal custody of the child to the department. A.H. remained in
foster care. On August 7, the department petitioned to terminate parental rights or to
transfer permanent legal and physical custody of A.H. Father was personally served with
the petition on August 26. The matter came on for trial on October 28. Mother did not
appear, and the district court granted the county’s motion to proceed against mother by
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default. Father appeared for trial and was represented by counsel. The district court’s
resulting findings of fact are summarized below.
Father was born in 1979 and was diagnosed with schizophrenia when he was 18
years old. Father has also been diagnosed with depression and anxiety. He started using
marijuana at the age of 9, alcohol at the age of 12, and has used cocaine, ecstasy, and
nicotine regularly during his adult life. Father has never been employed full time during
his adult life and receives disability payments based on his schizophrenia. He has two
other children who live in Milwaukee with their mothers, and he is not the primary parent
for either child.
The department offered father a voluntary case plan to address his longstanding
mental-health and chemical-dependency issues. The department developed the case plan
with father’s input, father signed the case plan on January 27, 2014, and father agreed
that he needed the services outlined in the plan to help him meet A.H.’s needs. As part of
the case plan, father agreed to complete a chemical-dependency evaluation and follow its
recommendations, complete chemical-dependency treatment, submit to random
urinalyses as requested, participate in supervised visitation with A.H., address his mental-
health needs through an updated psychological evaluation and any medications as
recommended, cooperate and maintain regular contact with his county-assigned social
worker, and participate in parenting assessment or education as recommended.
On January 14, father completed a Rule 25 assessment with an evaluator from
Park Avenue Center. Father reported that, on a daily basis, he was using marijuana,
cocaine, and nicotine, and drinking a half-pint of alcohol. The evaluator concluded that
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father had cannabis- and stimulant-related use disorders and that his risk of relapse was
“extremely high” because he had “no awareness of the negative impact of mental health
problems or substance use” and “no coping skills to arrest mental health or addiction
illnesses.” In February, father entered a six-week inpatient treatment program at Park
Avenue Center. During his treatment, he underwent a mental-health intake and reported
that for ten years, he had regularly taken Seroquel for schizophrenia, Prozac for
depression, and Xanax for anxiety. Park Avenue Center discharged father from the
program at the end of March because he left the program without permission. Park
Avenue Center’s discharge report states that father lacked impulse control and coping
skills, returned to alcohol use, and broke treatment rules, resulting in a step down to
outpatient treatment. The report also states that father submitted two positive UAs for
cocaine and alcohol, denied cocaine use despite the positive UAs, and refused to provide
UAs on other occasions. The discharge report concludes that father appeared highly
vulnerable for further use, as indicated by his inability to identify the negative impact of
his continued use and the impact it would have on his son.
In June, father entered Twin Town men’s residential treatment center for inpatient
chemical-dependency treatment. Twin Town discharged father six days later. Father did
not enroll in another treatment program or seek an updated Rule 25 assessment after his
discharge from Twin Town.
Father missed one appointment for an updated psychological evaluation in April,
but completed an evaluation in June. The evaluator recommended that father take
psychotropic medication as prescribed, attend psychiatric appointments, meet with his
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mental-health case manager, follow the Rule 25 recommendations, complete a more
thorough psychological evaluation, and participate in informal support groups such as
Alcoholics Anonymous, Narcotics Anonymous, and Recovery Church. Father partially
complied with the recommendations. He took his medications as prescribed. He met
with his mental-health case manager, but only until June. He also sporadically attended
support-group meetings. He did not follow any of the other recommendations.
Father attempted to maintain contact with his social worker by calling and leaving
messages for her, even after he no longer had his own phone. But it was difficult for the
social worker to successfully return the calls because the telephone numbers father left
for return calls were disconnected, not working, or answered by individuals who said
they were not in contact with father. With regard to drug and alcohol testing, father had
at least 41 positive or missed UAs and six negative UAs. Father blamed his missed UAs
on the lack of a cell phone.
Father completed eight classes at Urban Ventures Leadership Foundation
Parenting program. He did not complete any additional parenting education or
assessment. From February through June, father attended 19 supervised visits with A.H.
and was always “very loving and appropriate” during the visits. But father did not visit
A.H. after June 23.
The district court found that the department made reasonable efforts to prevent
A.H.’s continued placement in foster care and to return A.H. to his parents, including
child-protection case management, child-services case management, kinship-search
services, a Rule 25 chemical-health assessment, chemical-dependency treatment, random
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UAs, mental-health evaluations, a parenting assessment, and supervised visitation. The
district court found that father has “not sufficiently engaged in [his] case plan[] and [has]
only minimally participated in services.” The district court found that given father’s
“history with chemical dependency and mental illness, and his failure to document
sobriety . . . and mental health stability, placing [A.H.] in his care would create a safety
risk to the child.” The district court noted that although father self-reported some
progress on his mental-health issues, his efforts ceased in June. The district court
determined that reunification with father is not possible in the reasonably foreseeable
future.
The district court concluded that father “continually failed to comply with the
duties imposed by the parent and child relationship”; is “palpably unfit to be a party to
the parent-child relationship because of his inability to address his longstanding chemical
dependency”; failed to correct the conditions leading to A.H.’s out-of-home placement;
and that A.H. is neglected and in foster care.
The district court also concluded that termination of parental rights is in A.H.’s
best interests. The district court reasoned that although father loves A.H., A.H. has never
lived with father, A.H. has been in out-of-home placement since birth, father has not
visited A.H. on a consistent basis, and A.H. has not truly bonded with father. The district
court further reasoned that the “child’s need for stability, a safe home environment,
appropriate medical care, and need for permanency” outweigh father’s “preferences,
interests, and desire to parent.”
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The district court terminated mother’s and father’s parental rights to A.H. Father
appeals.
DECISION
“[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). A district court’s
decision in a termination proceeding must be based on evidence concerning the
conditions that exist at the time of trial. In re Welfare of Child of T.D., 731 N.W.2d 548,
554 (Minn. App. 2007). An appellate court “exercises great caution in termination
proceedings, finding such action proper only when the evidence clearly mandates such a
result.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). On appeal we
examine 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 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 give the district court’s decision to terminate
parental rights considerable deference, 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).
An appellate court will affirm the district court’s decision to terminate parental
rights if the department made reasonable efforts to reunite the family, at least one
statutory ground for termination is supported by clear-and-convincing evidence, and
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termination is in the best interests of the child. Id. In this case, the district court
concluded that the department made reasonable efforts to reunite A.H. with father. The
district court identified four statutory grounds for termination: Minn. Stat. § 260C.301,
subd. 1(b)(2), (4), (5), (8) (2014), which provide that the district court may terminate
parental rights if “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”; “a parent is palpably unfit to be a party to the parent and child
relationship”; “following the child’s placement out of the home, reasonable efforts, under
the direction of the court, have failed to correct the conditions leading to the child’s
placement”; or “the child is neglected and in foster care.” And, the district court
concluded that termination of father’s parental rights is in A.H.’s best interests.
Father makes four arguments in support of reversal. We address each in turn.
I.
Father argues that the district court “erred in terminating [his] parental rights for
failing to comply with voluntary case-planning services.” See In re Child of Simon, 662
N.W.2d 155, 163 (Minn. App. 2003) (stating, in the context of a termination under Minn.
Stat. § 260C.301, subd. 1(b)(2), that a father’s “failure to satisfy key elements of the
court-ordered case plan provides ample evidence of his lack of compliance with the
duties and responsibilities of the parent-child relationship”). Father emphasizes that his
case plan was not court-ordered. But father does not cite relevant precedential authority
establishing that evidence supporting the statutory grounds for termination may not be
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based on noncompliance with a voluntary case plan.1 Instead, father cites In re Welfare
of Child of B.J.-M., 744 N.W.2d 669, 673 (Minn. 2008), which held that “the failure to
name [the child’s father] as a party in a petition requires reversal of the juvenile court
order terminating his parental rights.” B.J.-M. does not address whether a parent’s failure
to comply with a voluntary case plan can be used as evidence to establish the statutory
grounds for termination. The case therefore does not support father’s position.
We note that the department developed the case plan with father’s input, father
signed the case plan, and father agreed that he needed the services outlined in the case
plan to help him meet A.H.’s needs. Under the circumstances, we do not see how the
district court erred by considering father’s failure to complete the case-plan services
when determining whether his parental rights should be terminated. In sum, father has
not shown that the district court erred by partially relying on father’s case-plan failures as
support for its conclusion that statutory grounds for termination were proved.
II.
Father argues that the record “does not contain clear and convincing evidence to
support termination of parental rights under any of the four statutory grounds.” At least
one statutory ground for termination must be supported by clear-and-convincing
evidence. S.E.P., 744 N.W.2d at 385. The district court concluded that father is palpably
1
Father’s reliance on an unpublished decision of this court is misplaced. See Minn. Stat.
§ 480A.08, subd. 3 (2014) (stating that unpublished decisions of this court “must not be
cited as precedent, except as law of the case, res judicata, or collateral estoppel” and that
“[u]npublished opinions of the Court of Appeals are not precedential”).
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unfit. A district court may terminate parental rights to a child if the district 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). “[T]he county must prove a consistent pattern of
specific conduct or specific conditions existing at the time of the hearing that, it 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.
The district court concluded that father “has demonstrated a persistent pattern of
chemical dependency combined with a major mental illness that renders him palpably
unfit to parent his child for the foreseeable future.” Clear-and-convincing evidence in the
record supports this conclusion. The record shows that father has a long history of
chemical-dependency and mental-health issues. Father attempted treatment twice during
the pendency of this case and failed both times. Father made no further attempt at
treatment. His UAs tested positive for cocaine and alcohol. As to mental health issues,
father initially followed some of the recommendations of his psychological evaluation,
but not all. He stopped visiting his mental-health case manager in June. He also stopped
visiting A.H. in June. Lastly, father agreed that he needed the services outlined in his
case plan to help him meet A.H.’s needs, but he did not complete those services.
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Father argues that the record shows “little more than that he uses alcohol,
marijuana, and cocaine and that he has a couple of mental-health diagnoses” and that it
does not show that his “use of intoxicants and the mental health problem” renders him
“unable, for the foreseeable future, to properly care for the child.” Father minimizes his
chemical-dependency and mental-health issues and their impact on his fitness as a parent.
Moreover, father’s failure to successfully address those issues during the pendency of the
case demonstrates that he will be unfit to parent for the foreseeable future. We note that
father admitted at trial that he could not effectively parent his child if he is using drugs.
The district court’s conclusion that father is palpably unfit to parent is supported
by clear-and-convincing evidence. Because this statutory ground is adequately
supported, we do not review the district court’s reliance on other statutory grounds. See
S.E.P., 744 N.W.2d at 385 (stating that this court will affirm the district court’s decision
to terminate parental rights if at least one statutory ground for termination is supported by
clear-and-convincing evidence).
III.
Father argues that “termination of his . . . parental rights does not serve [A.H.’s]
best interests.” In every termination proceeding, “the best interests of the child must be
the paramount consideration.” Minn. Stat. § 260C.301, subd. 7 (2014). Even if a
statutory ground for termination exists, the district court must still find that termination of
parental rights is in the best interests of the child. In re Children of T.A.A., 702 N.W.2d
703, 708 (Minn. 2005). “In analyzing the best interests of the child, the court must
balance three factors: (1) the child’s interest in preserving the parent-child relationship;
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(2) the parent’s interest in preserving the parent-child relationship; and (3) any competing
interest of the child.” In re Welfare of Child of W.L.P., 678 N.W.2d 703, 711 (Minn.
App. 2004) (quotation omitted). “Competing interests include such things as a stable
environment, health considerations and the child’s preferences.” In re Welfare of R.T.B.,
492 N.W.2d 1, 4 (Minn. App. 1992). “Where the interests of parent and child conflict,
the interests of the child are paramount.” Minn. Stat. § 260C.301, subd. 7. “We review a
district court’s ultimate determination that termination is in a child’s best interest for an
abuse of discretion.” In re Welfare of Children of J.R.B., 805 N.W.2d 895, 905 (Minn.
App. 2011), review denied (Minn. Jan. 6, 2012).
The district court provided a detailed best-interest analysis, balancing preservation
of the parent-child relationship against A.H.’s competing interests. The district court
reasoned that although father loves his child, A.H. has not truly bonded with father and
that the “evidence demonstrates that both parents’ behavior has negatively impacted the
child.” The district court further reasoned that the “child’s need for stability, a safe home
environment, appropriate medical care, and need for permanency” outweigh father’s
“preferences, interests, and desire to parent.” The district court summarized the reasons
that termination of parental rights is in A.H.’s best interests: (1) “[t]he parents will not be
able to care for [A.H.] in the reasonably foreseeable future,” (2) “[n]either parent has
demonstrated an ability to address [the] issues that negatively impact their ability to
parent,” and (3) “[i]t is in the best interests of [A.H.] to be placed in a home with parents
who can meet his needs and provide him with love, stability, and safety,” and “a
termination of parental rights would free [A.H.] for adoption.”
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Father asserts that the record shows only that he “has a relatively minor problem
with intoxicant use” and a “relatively minor mental health problem.” The record refutes
that assertion. The district court did not abuse its discretion by concluding that
termination of father’s parental rights is in A.H.’s best interests.
IV.
Father argues that the district court “erred in its decision not to transfer legal
custody of [A.H.] to [his] mother.” “Termination of parental rights and adoption, or
guardianship to the commissioner of human services through a consent to adopt, are
preferred permanency options for a child who cannot return home.” Minn. Stat.
§ 260C.513(a) (2014) (emphasis added). “If the court finds that termination of parental
rights and guardianship to the commissioner is not in the child’s best interests, the court
may transfer permanent legal and physical custody of the child to a relative when that
order is in the child’s best interests.” Id. (emphasis added).
The district court reasoned that because it found termination of parental rights is in
A.H.’s best interests, it need not consider the alternative of transfer of legal custody.
Nonetheless, the district court concluded that, “at this time, the court does not have any
ground on which to conclude that transfer of legal custody would be in the child’s best
interests,” and provided a thorough explanation to support its conclusion. Moreover, the
district court noted that “[i]f any family member of either the mother or the father wishes
to provide permanency for the child, he or she may do so through the adoption process.”
The district court’s reasoning and decision regarding the proposed legal custody transfer
is consistent with the controlling statute and does not constitute reversible error.
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Father also argues that the department violated its statutory duty to conduct a
relative-placement search, that there should be a sanction for the failure, and that the
sanction should be reversal of the order terminating his parental rights. See Minn. Stat.
§§ 260.012(e)(3) (2014) (including a relative search among reasonable-efforts
requirements); 260C.212, subd. 2(a)(1) (2014) (listing “an individual who is related to the
child by blood, marriage, or adoption” as the first placement choice for a child placed out
of home); 260C.215, subd. 1 (2014) (requiring “special efforts to recruit a foster family
from among the child’s relatives”); 260C.219(b)(5) (2014) (requiring notice that “first
consideration [is given] for placement with relatives”); 260C.221 (2014) (setting forth
relative-search requirements).
Father contends that the department inexcusably delayed initiation of the Interstate
Compact on the Placement of Children (ICPC) process, see Minn. Stat. §§ 260.851,
260.93 (2014), which was necessary to facilitate placement with his mother. Father
argues that the delay “precluded a transfer of legal custody and led directly to an
unnecessary termination of parental rights.”
“Once a child alleged to be in need of protection or services is under the court’s
jurisdiction, . . . the court must ensure that the responsible social services agency makes
reasonable efforts to finalize an alternative permanent plan for the child as provided in
paragraph (e).” Minn. Stat. § 260.012(a) (2014). Subpart (e) provides, “‘Reasonable
efforts to finalize a permanent plan for the child’ means due diligence by the responsible
social services agency to: . . . conduct a relative search to identify and provide notice to
adult relatives” and “when the child cannot return to the parent or guardian from whom
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the child was removed, to plan for and finalize a safe and legally permanent alternative
home for the child, and consider[] permanent alternative homes for the child inside or
outside of the state, preferably through adoption or transfer of permanent legal and
physical custody of the child.” Id. (e), (e)(3), (e)(5).
The district court considered and rejected father’s challenges to the adequacy of
the department’s relative search in its orders terminating father’s parental rights and
denying father’s motion for a new trial. The district court was satisfied
that the department exercised reasonable efforts in conducting
the [relative] search in this case. . . . Many factors go into the
department’s determination of how much time should be
allocated to investigating individuals provided by [parents] as
placement and permanency options. Further, as [the
department] testified, the Interstate Compact on the
Placement of Children (ICPC) process can take a substantial
amount of time and resources, thus it necessitates full and
unwavering commitment from a potential placement
individual. The court finds [the department’s] testimony to
be credible that [paternal grandmother] brought a number of
concerns to [the department’s] attention prior to fully
committing to be a permanency option . . . , and an ICPC for
[paternal grandmother] was initiated shortly thereafter.
The district court’s reasonable-efforts finding was based on conflicting testimony
regarding when paternal grandmother unconditionally committed to serve as a permanent
placement for A.H. The district court’s resolution of the conflicting testimony is based
on a credibility determination to which we defer, and the resulting reasonable-efforts
finding is not clearly erroneous. See In re Welfare of L.A.F., 554 N.W.2d 393, 396
(Minn. 1996) (“Considerable deference is due to the district court’s decision [to terminate
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parental rights] because a district court is in a superior position to assess the credibility of
witnesses.”).
Moreover, the district court found that
absent a compliant father capable of keeping [A.H.] safe
(given [father’s] expressed desires and likely access to [A.H.]
if placed with [father’s mother]), [a transfer of legal custody
to paternal grandmother] is not an appropriate permanency
option given the age of [A.H.] and his need for long-term
safety and stability. It is also not a preferred permanency
option and there is nothing in the record to indicate that a
termination of parental rights and guardianship . . . is not in
[A.H’s] best interests. Accordingly, even if the ICPC had
been completed, the Court could not conclude that a transfer
of legal custody is in the best interests of [A.H.].
(Emphasis added).
That finding belies father’s argument that the alleged failure to timely initiate the
ICPC process resulted in an “unnecessary” termination. The district court’s finding that a
transfer of legal custody would not have been in A.H.’s bests interests even if the ICPC
process had been completed before trial shows that the alleged error does not impact the
validity of the termination order. The alleged error therefore could not provide a basis for
reversal. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d
76, 78 (1975) (stating that to prevail on appeal, an appellant must show both error and
prejudice resulting from the error); In re Welfare of Children of J.B., 698 N.W.2d 160,
171 (Minn. App. 2005) (applying Midway in a termination-of-parental-rights case).
Lastly, we note, as the district court did, that if paternal grandmother wishes to
provide a permanent placement for A.H., she may seek that relief in the post-termination
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adoption-placement process. See Minn. Stat. § 260C.607, subd. 6(a) (2014) (setting forth
procedure for a relative to move for an order for adoptive placement).
In conclusion, we have no reason to doubt that father loves A.H. and wants to
parent him. But the district court applied the appropriate statutory criteria, made findings
that are not clearly erroneous, and its termination order is supported by clear-and-
convincing evidence. Giving considerable deference to the district court’s decision, there
is no basis for this court to reverse.
Affirmed.
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