In the Matter of the Welfare of the Children of: K. M. and K. W., Parents, W. W., Intervenor.

• Court: Court of Appeals of Minnesota
• Decided: December 28, 2015
• Docket: A15-1273
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1273

In the Matter of the Welfare of the Children of: K. M. and K. W., Parents,

W. W., Intervenor

Filed December 28, 2015 Affirmed Larkin, Judge

Lyon County District Court File No. 42-JV-15-87

Robert L. Gjorvad, Runchey, Louwagie & Wellman, P.L.L.P., Marshall, Minnesota (for appellants)

Richard R. Maes, Lyon County Attorney, Nicole A. Springstead, Assistant County Attorney, Marshall, Minnesota (for respondent Lyon County)

Kyle Kosieracki, Tarshish Cody, PLC, Richfield, Minnesota (for intervenor)

Betty Schoephoerster, Marshall, Minnesota (guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Larkin,

Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellants challenge the district court’s order terminating their parental rights. We

affirm. FACTS

Appellant-mother K.M. and appellant-father K.W. are the parents of three children:

S.W., born in 2006; K.W., born in 2008; and S.W., born in 2011. Mother, father, and their

three children lived with the children’s paternal grandmother, W.W., in Marshall.

Southwest Health and Human Services was concerned regarding domestic disputes

between mother and father, drug use in their home, and the general condition of the home,

which was reportedly cluttered with clothes, spoiled food, garbage, and feces.

A child-protection petition was filed in September 2012, and the district court

adjudicated the children in need of protection or services. Mother and father eventually

moved with their children to an apartment but were later evicted. They then moved to a

house on Williams Street. The district court adopted multiple case plans for the parents,

which included diagnostic mental-health assessments, anger-management counseling, and

family therapy, as well as requirements that the parents keep their home clean and

appropriate, refrain from domestic violence, abstain from drug and alcohol use, and submit

to random urinalysis testing. After a June 30, 2014 review hearing, the district court found

that the parents had failed to make progress on their case plans. After a September 22

review hearing, the district court found that the parents had been uncooperative.

Later, the parents were arrested and charged with felony methamphetamine

possession for possessing more than 15 grams of methamphetamine in their Williams

Street home when the children were present. They were also charged with possession of

drug paraphernalia. The district court held an emergency protective-care hearing on

2 November 25, and ordered that the children be placed out of the parents’ home and in foster

care.

The district court adopted an out-of-home case plan in December, requiring the

parents to complete diagnostic mental-health, chemical-use, and anger-management

assessments and to abide by any ensuing recommendations; to remain free of mood-

altering chemicals including alcohol; to maintain relationships with the children, attend

scheduled visits with the children, and maintain phone contact with the children; and to

obtain appropriate housing. The parents failed to remain drug and alcohol free, to attend

all scheduled visits with the children, to obtain housing, and to complete chemical-

dependency treatment. Southwest Health and Human Services petitioned to terminate the

parents’ parental rights, and the parents denied the petition.

The district court held a termination trial in June 2015 and found that Southwest

Health and Human Services made reasonable efforts to reunite the parents with their

children, including child-protection case-management services, parenting-education

services, supervised visitation, transportation services, chemical-dependency assessments

and treatment, referrals for parenting classes, family-group-decision-making conferences,

urinalysis testing, in-home family counseling, foster parenting, hair-follicle testing,

medical assistance, financial assistance, individual therapy, payments for mental-health

care, parenting time for family members, and appointments to assist with case-plan

compliance.

The district court found that the parents consistently failed to comply with the case-

plan components. After the children were placed out of the home, the parents were in jail

3 multiple times for drug use. At the time of the termination trial, father was in jail,

unemployed, and lacked housing. Father was offered treatment two or more times and had

recently declined chemical-dependency treatment after his chemical-health evaluation

recommended inpatient treatment. Father completed a diagnostic assessment but did not

obtain the recommended mental-health care. Father did not complete an anger-

management course. Father failed to maintain adequate contact with the children. He lost

visits by not following the visitation center’s rules and declined additional visits offered by

his social worker. He missed court hearings and skipped visits while on warrant status. He

missed visits while in jail for drug use. Father was uncooperative with his social worker

and the children’s guardian ad litem. Sometimes he was angry and would scream, swear,

and yell at the social worker. Notably, father attended a church program where the children

were present with their foster parents and he failed to recognize his own children. Father

continued to use illegal drugs after his arrest and had been jailed four times for violating

release conditions.

By the time of the termination trial, father had been found guilty of second-degree

controlled-substance crime, a methamphetamine-related crime involving children, and

child endangerment. Father had not been sentenced, but he faced a presumptive

commitment to prison under the Minnesota Sentencing Guidelines. At the termination

trial, father testified that he and mother did not use drugs at the same time, and that one of

them would stay with the children while the other one used drugs. Father testified that they

used drugs in the basement and would not let the children enter the basement.

4 By the time of trial, mother was unemployed, lacked housing, and was in a

chemical-dependency treatment facility. Mother was slow to enter treatment and did not

begin treatment until about two weeks before trial. Mother continued to use drugs even

after her initial arrest and had been arrested on at least two more occasions for positive

drug-test results. Mother missed some visits with the children because she was in jail for

drug use. She failed to maintain a working phone to stay in contact with the children, and

she declined additional visits with the children offered by her social worker. Mother had

pleaded guilty to a second-degree controlled-substance crime, but she had not been

sentenced.

The district court found that the parents neglected the children’s educational needs.

For example, school papers were lost and the parents did not reliably attend school

conferences. The district court also found that the parents neglected the children’s dental

needs. The children needed significant dental work when they entered foster care, and their

gums would bleed when they brushed their teeth. The district court found that the parents

kept drugs in their home, used the drugs in the home while the children were present, were

unconcerned with their drug use, and did not understand that their drug use was a threat to

their children.

The district court found that the parents’ “failure to complete the case plan as to

mental health issues, anger management issues, chemical dependency issues and available

contact with the children indicates that the parents substantially, continuously, or

repeatedly refused or neglected to comply with the duties imposed upon the parent[s] by

5 the parent child relationship.” The district court also found that “there is no basis to

conclude that any of these matters will change in the foreseeable future.”

The district court concluded that the parents “have substantially, continuously, or

repeatedly refused or neglected to comply with the duties imposed upon the parent by the

parent/child relationship,” and that “reasonable efforts by the social services agency have

failed to correct the conditions that form the basis of the petition and reasonable efforts

would be futile in the future and, therefore, unreasonable.” The district court further

concluded that “following the children’s placement out of home, reasonable efforts under

the direction of the court have failed to correct the conditions leading to the children’s

placement,” and that “the children have been neglected and in foster care.”

The district court also concluded that termination of parental rights is in the

children’s best interests. The district court acknowledged that the children would

“naturally be interested in preserving the parent/child relationship” and that the parents

“verbalize a desire to maintain the parent/child relationship.” But the district court

reasoned that, in foster care, the children were in a safer, drug-free environment; the

children have flourished in an environment that is not filled with chaos and is safe from

exposure to drugs; the children have benefited from regular meals, improved dental care,

regular school attendance, and improved academic performance; the parents have been

absent from the children a significant amount of time; the parents have not adequately

supported the children’s school needs; the parents have not adequately attended to the

children’s dental needs; the parents have not attended to the youngest child’s speech needs;

6 the parents repeatedly exposed the children to drugs; and that the parents have

demonstrated no interest in changing their behaviors.

The district court terminated mother’s and father’s parental rights to the children.

The parents appeal.1

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), review denied (Minn. July 17, 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

1 Paternal grandmother W.W. petitioned for legal and physical custody of the children. W.W.’s petition was tried as an alternative to termination of parental rights. The district court denied W.W.’s petition. Neither parent nor W.W. challenges the district court’s denial of W.W.’s petition.

7 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 termination is

in the best interests of the child. Id. In this case, the district court concluded that Southwest

Health and Human Services made reasonable efforts to reunite the parents with their

children. The district court identified the following three statutory grounds for termination:

Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2014), which respectively 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”; “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 the parents’ parental rights is in the children’s

best interests.

The parents argue that none of the three statutory grounds for termination is

supported by clear-and-convincing evidence.2 At least one statutory ground for

termination must be supported by clear-and-convincing evidence. S.E.P., 744 N.W.2d at

385. We first review the district court’s determination under Minn. Stat. § 260C.301, subd.

2 The parents do not challenge the district court’s reasonable-efforts determination or its best-interests analysis.

8 1(b)(2). A district court may terminate parental rights to a child if the district court finds

that 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, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development, if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.

Minn. Stat. § 260C.301, subd. 1(b)(2).

The parents argue that there was “little, if any, evidence that [they] failed to provide

necessary food, clothing, shelter, education or other care and control necessary for the

children’s physical, mental or emotional health and development.” The parents’ argument

is unavailing. The record shows that the parents used drugs in their home while the children

were in the home. The children were removed after the police found 15 grams of

methamphetamine in the home. After the parents were charged with drug possession and

their children were removed from their care, they continued to use drugs, they were at times

in jail or on warrant status, and they failed to complete chemical-health treatment, as well

as other case-plan services that were intended to correct the conditions that contributed to

the children’s out-of-home placement.

“Failure to satisfy requirements of a court-ordered case plan provides evidence of a

parent’s noncompliance with the duties and responsibilities under section 260C.301,

subdivision 1(b)(2).” In re Welfare of Children of K.S.F., 823 N.W.2d 656, 666 (Minn.

9 App. 2012). The parents’ social worker testified extensively regarding the parents’ failure

to comply with the out-of-home case plan. She testified that both parents completed a

chemical-health evaluation, but that neither had completed treatment. She testified that

mother tested positive for methamphetamine three times after the children were removed

from home and that father tested positive for either methamphetamine or marijuana four

times. She testified that mother obtained a diagnostic assessment in 2012 or 2013 to

address her mental-health needs but did not follow through with individual therapy.

Mother did not complete a new diagnostic assessment as required under the out-of-home

case plan. And mother did not start an anger-management course.

The social worker also testified that father obtained a diagnostic assessment but did

not follow through with individual therapy. She testified that father did not complete an

anger-management class. As to maintaining a relationship with the children, the social

worker testified that “until recently,” the parents visited the children if they were not in

jail. She testified that father missed visits when he was “on the run.” She testified that in

May, one of father’s visits was postponed and two were cancelled because he was late. She

also testified that initially both parents failed to maintain phone contact with the children

because they would change phone numbers or their phones did not work. She testified that

“it got much better for a while,” but “now with them either being in jail or treatment a little

bit more often in the last month, it’s gotten more difficult.”

On this record, there is clear-and-convincing evidence that the parents substantially,

continuously, or repeatedly refused or neglected to comply with their parental duties as a

result of their ongoing drug use and untreated chemical-dependency issues. There is also

10 clear-and-convincing evidence that the parents are not able to comply with their parental

duties in the foreseeable future. See In re Welfare of H.K., 455 N.W.2d 529, 533 (Minn.

App. 1990) (“[Mother’s] unwillingness to complete any of the goals of her placement plan

provides clear and convincing evidence that the present conditions of neglect will continue

for a prolonged and indeterminate time.”), review denied (Minn. July 6, 1990). Because

the district court’s determination under section 260C.301, subdivision 1(b)(2) is supported

by clear-and-convincing evidence, we affirm the termination order without reviewing the

district court’s reliance on other statutory grounds. See S.E.P., 744 N.W.2d at 385 (stating

that at least one statutory ground for termination must be supported by clear-and-

convincing evidence).

Affirmed.