In the Matter of the Welfare of the Child of: C. M. R. and T. P. D., 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This opinion will be unpublished and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
A15-1307
In the Matter of the Welfare of the Child of: C. M. R. and T. P. D., Parents
Filed February 16, 2016
Affirmed; motion granted
Klaphake, Judge *
Hennepin County District Court Juvenile Division
File No. 27-JV-14-3495
Mary F. Moriarty, Hennepin County Public Defender, David W. Merchant, Assistant
Public Defender, Minneapolis, Minnesota (for appellant father)
Michael O. Freeman, Hennepin County Attorney, Kacy Wothe, Assistant County Attorney,
Minneapolis, Minnesota (for respondent Hennepin County Human Services and Public
Health Department)
Andrew Morant, Assistant Hennepin County Attorney, Minneapolis, Minnesota (for
mother C.M.R.)
Patricia Timpane, Minneapolis, Minnesota (guardian ad litem)
Considered and decided by Stauber, Presiding Judge; Reilly, Judge; and Klaphake,
Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant T.P.D. challenges the termination of his parental rights to M., now four,
arguing that the district court abused its discretion by ruling that appellant failed to satisfy
the duties of the parent-child relationship and is palpably unfit to be a parent and by
concluding that termination of appellant’s parental rights is in M.’s best interest. Appellant
also moves to strike portions of respondent’s brief. Because we see no abuse of discretion,
we affirm; because the documents appellant moved to have stricken were not in the record,
we grant the motion.
DECISION
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). Parental rights may be
terminated if a district court finds that at least one statutory basis is supported by clear and
convincing evidence. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn.
2008). The district court based its decision to terminate appellant’s parental rights on
findings that appellant had neglected the duties of the parent-child relationship and was
palpably unfit to be a party to that relationship and the conclusion that termination of
appellant’s parental rights was in M.’s best interests.
1. Neglect of duties of the parent-child relationship
Parental rights may be terminated if the district court finds “that the parent has
substantially, continuously, or repeatedly refused or neglected to comply with the duties
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imposed upon that parent by the parent and child relationship, including . . . providing the
child with the necessary food, clothing, shelter, education and other care and control
necessary for the child’s physical, mental, or emotional health and development . . . .”
Minn. Stat. § 260C.301, subd. 1(b)(2) (2014). 1
M. was removed from his parents’ home in August 2014, when he was two years
and eight months old. Two child-care professionals testified as to his condition at that
time. A child protection worker (C.P.W.) testified that M. was “very nonverbal,” made
“inaudible verbal grunts,” could not use words in sentences as most children his age do,
and lacked the social skills of children his age. A child services social worker (C.S.S.W.)
testified that M. had a cough, dry lips that were cracked and peeling, and severe diaper
rash; he acted out and could not speak or communicate; his major behavioral problems
were banging his head and frequent temper tantrums that could last for hours; he was
aggressive to the point of hitting and punching others; he was afraid of water and could not
be bathed; he did not sleep through the night; and he screamed if someone tried to touch
him. He “was very behind developmentally in his receptive language skills” and “severely
neglected.” The C.S.S.W. also noted that, since being in foster care, M. had made
significant improvement, was speaking in short sentences, and had stopped hurting himself.
1
The statute also requires a finding that either reasonable efforts have been made by the
social services agency and have failed to correct the conditions on which the petition was
based or the agency’s reasonable efforts would be futile and therefore unreasonable.
Appellant does not dispute the district court’s finding that reasonable efforts were made
and that they failed to correct the conditions.
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These professionals also testified about their experiences with appellant. C.P.W.
answered “no” when asked if (1) appellant “fully understands the developmental
challenges that [M.] faces,” (2) appellant “has demonstrated that he has the ability to keep
[M.] on track developmentally,” (3) appellant “has demonstrated that he is aware that [M.]
was behind when he came into the care and custody of the department,” and (4) appellant
thought he had a chemical dependency problem. C.P.W. also testified that appellant often
“presented as very angry, very upset, very hostile, . . . very short tempered, and that’s
concerning to me, from a child protection standpoint.” He said of appellant that it was
“concerning to have a client who engages in domestic violence and doesn’t seem to think
that that’s a problem.” When asked if he would be “concerned that [M.] would be in danger
in [appellant’s] care and custody, C.P.W. said “Yes, I would.” When asked if appellant
shows any insight into domestic violence, he answered, “Not really, no. There’s very little
insight at all.” C.P.W. testified that appellant’s visits with M. “were suspended because of
[appellant’s] failure to demonstrate sobriety” and had not been reinstated because of
appellant’s continued failure to demonstrate sobriety. Finally, C.P.W. testified that
appellant could not meet M.’s needs and would not be able to do so in the reasonably
foreseeable future; therefore, C.P.W. recommended terminating appellant’s rights.
C.S.S.W. testified about a visit of appellant with M. during November 2014:
[M.] was crying most of the time. [Appellant] . . . was gone
for . . . 20 minutes, and [M.] thought the visit was over, so he
was really happy.
....
. . . [M.] was in the waiting room with the current foster
parents and . . . they were reading a book to him and he was
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calmed down . . . . But then upon seeing [appellant] again come
back and telling him he had to go back into the visitation room
for more time with [appellant], he had a major meltdown. We
had to end the visit.
Appellant testified that he: (1) had assaulted M.’s mother twice, in January 2014
when M. was in their home, and in August 2014, after M. had been removed; (2) was still
angry with M.’s mother, although they were no longer together, and had no other anger
issues; (3) received his case plan in August 2014, but delayed in engaging in it because he
felt that he had done nothing wrong, nothing had been proved against him, and lots of
people have arguments; (4) was not cooperative with participating in anger management;
(5) had not completed the urinalysis tests required by the case plan because he used
marijuana for pain; (6) had not participated in parenting education required by the case
plan; (7) had not completed the mental health assessment required by the case plan;
(8) could understand M. and thought he communicated very well, although M. made only
guttural noises; (9) was not concerned about M.’s aggressive behaviors because he was
only three; and (10) had not been receptive to the case plan, but was now taking steps to
address domestic violence as it required.
Particularly as it pertained to M. and to appellant’s progress with the case plan,
appellant’s testimony conflicted with that of C.S.S.W. and C.P.W. The district court
addressed these conflicts, finding that the testimony of C.P.W. and C.S.S.W. was “credible,
accurate and consistent,” while appellant’s testimony, particularly in regard to: (1) his
problems with anger and domestic violence, his need to address them, and the impact of
domestic violence on M.; (2) his lack of awareness or inaccurate reporting of M.’s
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aggressive behavior; (3) his use of marijuana; and (4) M.’s inability to communicate
verbally was not credible. “Considerable deference is due to the district court’s decision
because the district 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). The district court’s findings are
supported by record evidence, and its conclusion that appellant neglected the duties of the
parent-child relationship was not an abuse of discretion.
Appellant argues that the district court erred because it “relied upon [appellant’s]
earlier noncompliance instead of focusing on [his] skills and behavior at the time of the
trial” and that this court should reverse the termination of his parental rights. But none of
the four cases on which he relies for this argument supports his position. In re Children of
T.R., 750 N.W.2d 656, 658 (Minn. 2008) involved a county’s failure to show that it had
made reasonable efforts to reunite the parent and child, which is not an issue here; In re
Welfare of P.R.L., 622 N.W.2d 538, 545 (Minn. 2001) reversed this court’s decision and
reinstated the district court decision terminating the rights of a parent who, like appellant,
had not shown that the conditions leading to the out-of-home placement had been corrected
and had not complied with the case plan; In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn.
1996) affirmed a termination of the rights of a parent on grounds of palpable unfitness
where the parent, like appellant, would be unable to care for or meet the needs of the child
for the reasonably foreseeable future; and In re Welfare of J.W., 807 N.W.2d 441, 442-43
(Minn. App. 2011) concerned a parent whose rights to six older children had been
terminated and was therefore presumptively palpably unfit to be a party to the parent-child
relationship, which is not the case with appellant. The district court did not terminate
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appellant’s parental rights solely because appellant had neglected the duties imposed by
the parent-child relationship but also because there was no basis to assume that he would
not continue to neglect them.
2. Palpable unfitness
Parental rights may also be terminated if there is clear and convincing evidence “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 . . . relationship . . . 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) (2014).
The district court found that
Due to [appellant’s] emotional instability, volatility, and drug
use, [M.] came from a chaotic and unregulated home
environment that resulted in [his] poor condition when he came
into the custody of the Department. [M.] did not have access
to necessary medical, educational, or emotional care and
clearly suffered as a result. Furthermore, the Court finds that
[M.]’s condition has improved significantly since being
removed from the day to day care of his parents, which further
indicates that [M.]’s poor condition was the result of the nature
of [appellant’s] care rather than related to [M.]’s underlying
conditions. [Appellant’s] emotional instability, anger, and
drug use so substantially interfered with his ability to
appropriately parent [M.] as to render [appellant] palpably
unfit to be a parent. [Appellant], as a result of either willful
deception or ignorance, was not aware of [M.]’s medical and
emotional needs and [M.] suffered as a result of inadequate
care.
Appellant relies on T.R. to argue that the district court erred in basing its conclusion
that he is palpably unfit on his failure to comply with the case plan. But T.R. does not hold
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that failure to comply with a case plan may not be used as a grounds for ruling a parent to
be palpably unfit; it holds that, absent findings that the conduct indicating a failure to
comply with a case plan (in T.R., the failure to comply involved the parent’s use of
chemicals) was connected to the parent’s inability to provide for the child’s needs, the
failure to comply with a case plan was not a sufficient basis for a finding of palpable
unfitness. T.R., 750 N.W.2d at 663-64. Here, the district court explicitly found that:
(1) M.’s poor condition in April 2014, when he left appellant’s home, was due to the
“chaotic and unregulated environment” of that home and (2) the fact that M. had made
significant improvements after leaving appellant’s home indicated that appellant’s
emotional instability, anger, and drug use were partial causes of M.’s poor condition.
Clear and convincing evidence supports the relevant findings, and the district court
did not abuse its discretion in ruling that appellant is palpably unfit to be a party to the
parent and child relationship. 2
3. Best interests of the child
In termination proceedings, “the best interests of the child must be the paramount
consideration . . . .” Minn. Stat. § 260C.301, subd. 7 (2014). In determining a child’s best
interests, the district court considers the child’s interest in preserving the parent-child
relationship, the parent’s interest in preserving that relationship, and any competing
interests of the child. Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3).
2
Appellant also argues that, because he raised two children who were 37 and 35 at the time
of trial, he is not palpably unfit to be a parent. But the fact that appellant was not palpably
unfit to be a parent more than 30 years ago does not mean that he is not palpably unfit now.
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Here, M.’s interest is in an environment that provides him with stability and meets
his significant developmental needs that resulted from the two and a half years he spent
with his parents. The district court did not abuse its discretion in deciding that termination
of appellant’s rights was in M.’s best interests.
Appellant argues in the alternative that the termination was premature and the
district court should have declared M. to be a child in need of protection or services
(CHIPS) for an extended period. For this argument, appellant relies on In re Welfare of
M.H., 595 N.W.2d 223 (Minn. App. 1999). But that case is distinguishable: it concerned
extending CHIPS status where the parent was not palpably unfit and had completed many
of the case-plan requirements and the parent’s failure to complete the parenting assessment,
was due to the “rather unfortunate advice” of her attorney. M.H., 595 N.W.2d at 228. Here,
appellant testified that the decision not to cooperate with the case plan was his own.
Moreover, while the district court in M.H. was within its discretion in continuing protective
foster care so the parent could fulfill conditions that would enable the child to return to her,
id. at 229, the district court here was equally within its discretion in concluding that,
because clear and convincing evidence indicated that two of the statutory criteria had been
met, termination of appellant’s rights was in M.’s best interests. 3
Affirmed; motion granted.
3
Because the materials appellant moved to strike from respondent’s brief are not included
in the record, we grant the motion. See Minn. R. Civ. App. P. 110.01 (defining the record
on appeal). We note, however, that the information contained in those extra-record
materials was provided by other exhibits and by appellant’s own testimony.
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