In the Matter of the Welfare of the Child of: J. B. T., Parent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0960
In the Matter of the Welfare of the Child of: J. B. T., Parent.
Filed October 27, 2014
Affirmed
Stauber, Judge
Clay County District Court
File No. 14JV134102
Timothy H. Dodd, Detroit Lakes, Minnesota (for appellant)
Brian J. Melton, Clay County Attorney, Johnathan R. Judd, Assistant County Attorney,
Moorhead, Minnesota (for respondent)
Laurie Christianson, Moorhead, Minnesota (guardian ad litem)
Considered and decided by Kirk, Presiding Judge; Hudson, Judge; and
Stauber, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
On appeal from the termination of her parental rights to her child, appellant-
mother argues that the record lacks clear and convincing evidence supporting the district
court’s determinations that (1) appellant is palpably unfit to be a party to the parent and
child relationship; (2) appellant failed to correct the conditions that led to the out-of-
home placement; and (3) the child is neglected and in foster care. We affirm.
FACTS
Appellant J.B.T. is the mother of D.T., who was born on September 29, 2008.
D.T.’s father is unknown. In 2000, appellant suffered a traumatic brain injury in a car
accident. She also suffers from chronic mental-health issues and has been diagnosed with
Bipolar Disorder, Generalized Anxiety Disorder, Attention Deficit Hyperactivity
Disorder, Post-Traumatic Stress Disorder, Adjustment Disorder with Depression, and
Personality Disorder.
Appellant’s mental-health issues led to D.T.’s out-of-home placement in February
2013, following a report that D.T. was possibly neglected or abused. Healthcare
professionals observed a “small bruise” under D.T.’s eye, which D.T. indicated was
caused when his mother “spanked” him. Officers investigating the report interviewed
appellant at her apartment. According to the officers, the apartment was in “general
disarray” and emitted an “unpleasant odor.” In speaking with the officers, appellant
spoke irrationally, telling the officers that “she was related to the Queen of England” and
that she was “royalty,” mentioning that she “needed to take down Exxon Mobile Oil
company and Halliburton company because they were negatively impacting people’s
lives,” and stating that she “is friends and speaks to Senator Al Franken as well as other
friends and acquaintances of power in Washington DC.” When asked about D.T.’s
bruise, appellant failed to give a definitive explanation, but speculated that a “TV had
fallen and maybe the antenna had struck him.”
The officers determined that an emergency placement of D.T. outside of the home
was appropriate under the circumstances. An emergency protective care hearing was
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then held on February 22, 2013, in the Clay County District Court, after which D.T. was
ordered into foster care. A case plan was developed and provided to appellant, which
required her to (1) complete a parental capacity evaluation and follow the resulting
recommendations; (2) demonstrate an ability to develop and implement a safety plan;
(3) consistently follow the recommendations of social services and service providers;
(4) participate in therapy; and (5) cooperate, consistently engage in, and actively
participate in services with service providers.
On December 10, 2013, respondent Clay County filed a petition to terminate
appellant’s parental rights to D.T., asserting that appellant’s parental rights should be
terminated under Minn. Stat. § 260C.301, subd. 1(b)(4) (2012) (palpably unfit to be a
party to the parent-child relationship); Minn. Stat. § 260C.301, subd. 1(b)(5) (2012)
(reasonable efforts have failed to correct conditions that led to placement of child); and
Minn. Stat. § 260C.301, subd. 1(b)(8) (2012) (child neglected and in foster care).
At trial, evidence was submitted demonstrating that appellant completed a parental
capacity evaluation (PCE) with Dr. John Molestre in March 2013, and had a personal
interview in April 2013. Dr. Molestre recommended that appellant “see an individual
therapist on a regular basis,” that she “continue to involve herself with psychiatric
services,” and that she work with an “experienced family therapist.” Dr. Molestre
concluded that “ultimately reunification will depend on [appellant’s] willingness to
accept the provisions of her case plan, work with therapists, including an experienced
family therapist that [is] available to her, and demonstrate through supervised and
ultimately unsupervised visits with [D.T.] that she is meeting his needs . . . .”
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The evidence also established that after appellant’s case plan was implemented,
she consistently changed mental-health therapists. Appellant initially began seeing
Cheryl Toutges for individual therapy on February 26, 2013, but appellant discontinued
her services with Toutges after four sessions. In the summer of 2013, appellant began
seeing Cathy Hjelle for mental-health therapy. But Hjelle discontinued her services with
appellant after a few weeks when appellant failed to attend four of her six scheduled
appointments.
In the late summer and early fall, appellant sought online counseling, paying out-
of-pocket for these services. Appellant then began seeing psychiatrist Dr. Emmett
Kenney, Jr. in September 2013. According to Dr. Kenney, appellant scheduled four
appointments after the initial evaluation, but he saw her only twice. Dr. Kenney then
sent appellant a termination letter in November 2013 due to her failure to follow-through
with appointments. Dr. Kenney concluded that appellant has limited judgment and
insight into her mental-health needs and that she is at high risk for not completing
mental-health services.
Also in September 2013, appellant relocated to Fargo, North Dakota. The move
significantly impacted appellant’s access to services by complicating insurance issues.
As a result, while appellant was living in Fargo, she was on a waiting list to receive
mental health services. She subsequently moved back to Minnesota and began seeing Dr.
Carolyn Klehr for individual therapy in February 2014. Appellant was still seeing Dr.
Klehr at the time of trial.
4
Appellant also participated in supervised visitation with D.T. These visits were
initially set up through Rainbow Bridge, but in June 2013, the agency declined to
continue providing services to appellant. According to the executive director of the
agency, the services were discontinued due to obscene language used by appellant and
perceived threats made by appellant toward staff members.
After Rainbow Bridge stopped offering services to appellant, the supervised
visitation was moved to the Social Services Building in Moorhead. According to Alex
Ishaug, a county child protection worker, appellant’s visits with D.T. were “inconsistent,”
meaning some were good, but “there were others where the concerns were raised.”
Ishaug testified that D.T. “can be a pretty hard kid to manage or to parent,” and that when
he would “act[] out,” appellant would sometimes just leave and end the visit.
Evidence was also presented regarding D.T.’s mental-health treatment and needs.
D.T. has been diagnosed with Pervasive Development Disorder and Attention-Deficit
Hyperactivity Disorder (ADHD). Dr. Amador Dizon, D.T.’s psychiatrist, testified that
D.T. is a “very special-needs child” and can be a “really difficult child to take care of.”
Dr. Dizon opined that, as a result, “even the more experienced foster parents” have not
been “able to handle” him. Dr. Dizon further testified that D.T. “needs almost one-to-one
supervision.” At the time of trial, D.T. was in his fourth foster-home placement, and no
permanency options had yet been identified for him.
The district court found no evidence that appellant abused D.T. and that the state
of appellant’s “home at the time of [D.T.’s] removal is not relevant . . . because this is not
a ‘messy house’ case.” But the district court concluded that appellant is “palpably unfit
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to be a party to the parent and child relationship” due to her “chronic and severe mental
health issues and her inability to properly care for and manage herself independently,
which is of a duration or nature that renders her unable for the reasonably foreseeable
future, to care appropriately for the ongoing physical, mental or emotion needs of” D.T.
The district court also concluded that “reasonable efforts, under the direction of the court,
have failed to correct the conditions leading to [D.T.’s] placement.” Therefore, the
district court determined that the “grounds for termination have been proven by clear and
convincing evidence” under Minn. Stat. § 260C.301, subd. 4(b)(4), (5), (8), and that “it is
in [D.T.’s] best interest to grant the termination petition as to [appellant].” This appeal
followed.
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). “The court must
make its [termination] decision based on evidence concerning the conditions that exist at
the time of termination and it must appear that the conditions giving rise to the
termination will continue for a prolonged, indeterminate period.” In re Welfare of Child
of T.D., 731 N.W.2d 548, 554 (Minn. App. 2007) (quotation omitted). 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, this court examines 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). The
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reviewing court gives the district court’s decision considerable deference, but “closely”
inquires “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 affirms the district court’s termination of parental rights “when at least
one statutory ground for termination is supported by clear and convincing evidence and
termination is in the best interests of the child, provided that the county has made
reasonable efforts to reunite the family.”1 Id. (citations omitted).
I. Palpable unfitness
The district court concluded that appellant is palpably unfit to parent D.T. under
Minn. Stat. § 260C.301, subd. 1(b)(4). This statute provides that a juvenile court may
terminate parental rights when it finds
that a 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.
Id.
The Minnesota Supreme Court has held that the burden under this statute is
onerous and that “[t]he petitioning party must prove a consistent pattern of specific
conduct or specific conditions existing at the time of the hearing that appear will continue
for a prolonged, indefinite period and that are permanently detrimental to the welfare of
1
Appellant does not challenge the district court’s best interests determination.
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the child.” In re Welfare of Children of T.R., 750 N.W.2d 656, 661 (Minn. 2008)
(quotation omitted). “In each case, the actual conduct of the parent is to be evaluated to
determine his or her fitness to maintain the parental relationship with the child in question
so as to not be detrimental to the child.” S.Z., 547 N.W.2d at 892 (quotation omitted).
The focus of the district court in evaluating palpable unfitness should not be on past
history, but the projected permanency of the specific conditions that render the parent
unable to care for a child. In re Solomon, 291 N.W.2d 364, 368 (Minn. 1980). In order
to support termination of a parent’s rights, the specific conditions relied on by the district
court must have a causal connection to the parent’s inability to care for the child. T.R.,
750 N.W.2d at 662-63.
In In re Welfare of Children of B.M., this court stated that mental illness alone is
insufficient to show that parental rights should be terminated; rather the mental illness
must directly affect the ability to parent. 845 N.W.2d 558, 563 (Minn. App. 2014).
Appellant argues that, like in B.M., there is no evidence demonstrating a connection
between her “mental health issues and any of her child’s behaviors.” Thus, appellant
argues that the district court erred by concluding that she is palpably unfit to be a party to
the parent and child relationship.
We acknowledge that the evidence demonstrating that appellant’s mental illness
directly affects her ability to parent D.T. is not overwhelming. The record reflects that
despite switching mental-health therapists several times, resulting in sporadic attendance
in mental-health therapy, appellant did participate in therapy and, in fact, had been
consistently attending therapy sessions with Dr. Klehr for a few months prior to the
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termination trial. The record also reflects that appellant consistently attended the
supervised visits with D.T., and that many were “good” visits. And although appellant
had visits with D.T. that raised “concerns,” with the social workers, the record indicates
D.T. is “a very special-needs child” and can be “challenging for any parent.”
Nonetheless, appellant’s reliance on B.M. is misplaced because the facts in B.M.
are distinguishable from the facts presented here. In B.M., the father, C.G., whose
parental rights were terminated, was an adult with below-average intellectual functioning
who lived with his mother. Id. at 560-61. A licensed psychologist who performed a
parenting assessment for C.G. and C.G.’s mother testified that “[C.G.] together with [his
mother] could co-parent effectively.” Id. at 561. The psychologist also testified that
despite his mental deficiencies, C.G. “is capable of learning in a ‘slower way than other
people’ and that he is ‘motivated to learn when it comes to parenting.’” Id. at 565.
Moreover, a county caseworker testified that C.G. “understands the basic concepts of
parenting . . . and . . . did a really nice job of playing with [his child] and engaging her.”
Id. at 564-65. And, importantly, C.G. “recognized his shortcomings and . . . obtained the
necessary help.” Id. at 565.
Here, unlike in B.M., record reflects that appellant has very little insight into her
mental-health issues, fails to understand how these issues affect D.T., and does not
understand and recognize her own need for services. In fact, the record reflects that
appellant has consistently failed to follow through with her mental-health treatment by
repeatedly canceling or failing to attend appointments. And appellant further
compounded this problem when she temporarily moved to Fargo, which complicated her
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ability to receive mental-health services. As a result, appellant’s mental-health therapists
were constantly changing, precluding the much-needed treatment and therapy.
Moreover, unlike in B.M., appellant does not cohabitate with someone who can
compensate for her mental-health deficiencies and help her co-parent D.T. Further, the
record reflects that D.T. is a very difficult child, which presents additional challenges for
a single parent with mental-health needs. Finally, unlike in B.M., the record reflects that
here, “concerns were raised” following some of appellant’s supervised visits with D.T.
because appellant would “sometimes just leave and end the visit” when D.T. “would act[]
out.” This evidence indicates that appellant fails to understand the nature of D.T.’s
mental-health needs and demonstrates appellant’s inability to effectively parent D.T.
when he acts out. See In re Child of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003)
(concluding that district court did not clearly err in making determination of palpable
unfitness given, in part, evidence of parents’ lack of emotional connection with child and
their failure to understand parenting deficits), review denied (Minn. Apr. 15, 2003).
Accordingly, because there is clear and convincing evidence supporting the district
court’s findings underlying its determination that appellant’s parental deficiencies in
caring for D.T.’s mental and emotional needs will continue for the foreseeable future, the
district court did not err by concluding that appellant is palpably unfit to be a party to the
parent and child relationship.
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II. Correcting conditions leading to placement
The district court also found clear and convincing evidence to terminate
appellant’s parental rights to D.T. under Minn. Stat. § 260C.301, subd. 1(b)(5). That
statute provides that a juvenile court may terminate a parent’s rights to a child if it finds
“that 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.” Id. It is presumed that reasonable efforts have failed if (1) the child is under
eight years old and has been in placement for more than six months, unless the parent has
maintained regular contact with the child and is complying with the case plan; (2) there is
a court-approved case plan; (3) the conditions that led to the out-of-home placement have
not been corrected; and (4) the social services agency has made reasonable efforts to
reunite the family. Id.
Appellant does not dispute that the county provided reasonable services. But
appellant argues “that the fact that she was actively receiving services that were
recommended at the time of trial should have been reason enough not to terminate
appellant’s parental rights.”2 We disagree.
Minnesota law provides that a parent may comply with a case plan but
nevertheless fail to correct conditions leading to out-of-home placement. In re Welfare of
Child of J.K.T., 814 N.W.2d 76, 89 (Minn. App. 2012); see In re Welfare of Maas, 355
N.W.2d 480, 483 (Minn. App. 1984) (affirming that mother’s substantial compliance
2
The county acknowledged at oral argument that it stopped providing services to
appellant after her parental rights were terminated. Thus, no services were available
during this appeal.
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with court-ordered parenting sessions, psychological treatment, and sobriety were
insufficient to avoid termination given her negative parenting history and poor prognosis
for long-term improvement). The critical issue is not whether the parent formally
complied with the case plan, but rather whether the parent is presently able to assume the
responsibilities of caring for the child. In re Welfare of J.L.L., 396 N.W.2d 647, 651
(Minn. App. 1986).
The record reflects that appellant consistently failed to follow through with her
mental health treatment, disagreed with her mental-health diagnosis, and generally
demonstrated a lack of understanding of her mental-health needs. Although appellant
began to satisfy some of her case-plan requirements by consistently attending therapy a
few months before the termination trial, the evidence presented at trial demonstrates that
appellant was consistently uncooperative and made little progress in addressing her
mental-health issues. Moreover, although appellant consistently attended her supervised
visits with D.T., the record reflects that she struggled to use effective behavior-
management skills when D.T. acted out, would sometimes leave the visits when D.T. had
a tantrum, and never progressed beyond supervised visitation with D.T. Appellant’s
failure to adequately address her mental-health needs, in conjunction with her failure to
demonstrate an ability to manage D.T.’s behavioral and mental-health issues, shows that
she is unable to assume the responsibilities of caring for D.T. Accordingly, there is clear
and convincing evidence that appellant’s parental rights should be terminated because of
her failure to correct the conditions leading to the out-of-home placement.
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III. Neglected and in foster care
The district court found that D.T. was neglected and in foster care under Minn.
Stat. § 260C.301, subd. 1(b)(8), which also serves as a basis for terminating a parent’s
rights to her child. A child is neglected and in foster care if the child (1) is in court-
ordered out-of-home placement; (2) cannot be returned home because of its parents’
“circumstances, condition, or conduct”; and (3) cannot return home because the parents
have failed to make reasonable efforts to adjust their circumstances, condition, or
conduct. Minn. Stat. § 260C.007, subd. 24 (2012).
Here, D.T. is in court-ordered out-of-home placement and cannot be returned to
appellant’s care and custody due to her mental illness. Moreover, the record reflects that
appellant has failed to adequately address or make progress with regard to her mental-
health issues. Therefore, the district court did not err by concluding that D.T. was
neglected and in foster care.
Affirmed.
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