In re G. J. Parents F., A18-0323

• Decision Date: 22 October 2018
• Docket Number: A18-0323,A18-0333
• Citation: 920 N.W.2d 648
• Parties: In the MATTER OF the WELFARE OF the Child of: A. M. C. and G. J. F., Parents.
• Court: Minnesota Court of Appeals

920 N.W.2d 648

In the MATTER OF the WELFARE OF the Child of: A. M. C. and G. J. F., Parents.

A18-0323

A18-0333

Court of Appeals of Minnesota.

Filed October 22, 2018

Jeremy Blackwelder, Holmstrom & Kvam, PLLP, Granite Falls, Minnesota (for appellant-father G.J.F.)

Curtis Reese, Olivia, Minnesota (for appellant-mother A.M.C.)

David Torgelson, Renville County Attorney, Laurence Stratton, Assistant County Attorney, Olivia, Minnesota (for respondent Renville County)

Jan Tonn, Wood Lake, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and Jesson, Judge.

OPINION

RODENBERG, Judge

In these consolidated appeals from the termination of the parental rights of both parents, we consider whether and under what circumstances a noncustodial parent who is not a party to a CHIPS proceeding is entitled to appointed counsel. Under the plain language of Minn. Stat. § 260C.163, subd. 3(c)¹ , all parents who desire and are unable to afford counsel are entitled to appointed counsel in any case in which the district court "feels that such an appointment is appropriate." Because the district court did not reversibly err in terminating the parental rights of both parents, we affirm.

FACTS

Appellant-parents A.M.C. (mother) and G.J.F. (father) are the parents of N.F., who was born in 2008. Father is the adjudicated father of N.F. by way of a Recognition of Parentage. The parents were never married, but lived together for approximately ten years. During that time, they shared in parenting N.F. They separated in 2015, after which mother became N.F.'s custodial parent.

Renville County Human Services (county) became involved with the family after it received a report from N.F.'s school that N.F. had come to school in cold weather without a winter coat, hat, or mittens. Following that report, the county unsuccessfully attempted to locate mother and father. The county discovered that N.F. had been living with a maternal aunt and uncle because mother had been evicted from her residence and was homeless. Aunt thought that mother may be abusing prescription medications or using methamphetamine. Father had been released from jail and was thought to be living in Olivia, but the county could not locate him.

The county filed a petition alleging N.F. to be a child in need of protection or services and requested an emergency protective care (EPC) hearing. After the EPC hearing, the district court found that N.F. was in need of emergency protective care and granted temporary custody of N.F. to the county.

In December 2015, at the admit/deny hearing on the CHIPS petition, mother admitted the petition. Mother testified that she was using drugs, needed drug treatment, and was then unable to adequately parent N.F. She also told the district court that she had mental health issues and that she was homeless. The district court adjudicated N.F. to be a child in need of protection or services.²

Father attended the admit/deny hearing in the CHIPS case, and requested court-appointed counsel. The district court denied father's request. The district court reasoned that, because father was a noncustodial parent, he was not a party to the proceedings and was therefore not entitled to appointed counsel. The district court told father that, although it would not appoint counsel, father could hire a private attorney. Father also asked to become a party, but the district court denied this request. At a later hearing in February 2016, father again requested to intervene as a party. The district court again declined to make father a party.³

Over the next two years, and because of father's repeated incarceration, and his resulting unavailability to parent, the county focused its reunification efforts on mother. The county developed three out-of-home placement plans (OHPP) with mother. It sought out and assisted mother in finding treatment and housing on multiple occasions. Mother successfully completed inpatient treatment and was making progress for a time. N.F. remained in foster care, but frequently visited mother and was beginning to have overnight visits with mother at the treatment facility. Mother's progress stalled when she relapsed. The county continued to assist mother, but mother became unresponsive to the county's efforts. Mother was not drug testing in compliance with the county's instructions. When she did test, she often tested positive for nonprescribed drugs. The county attempted to hold meetings with mother, but mother often missed meetings.

During this same time, father was incarcerated for a variety of crimes in multiple jails in Minnesota and Wisconsin. At one point, he requested execution of a stayed prison sentence. The district court found that this amounted to "a decision which [father] knew would render him unavailable to participate in this proceeding." The county was unable to stay in contact with father during these multiple incarcerations.

N.F. remained in foster care during all of this. While in foster care, N.F. made academic progress and was thriving with a foster family.

In August 2017, the county filed a petition seeking termination of the parental rights (TPR) of both parents. Both parents opposed the petition. Father was provided with appointed counsel for the termination proceedings. Following a trial on the TPR petition, the district court terminated the parental rights of both parents.

These consolidated appeals followed.

ISSUES

I. Did the district court abuse its discretion in terminating mother's parental rights?

II. Is father entitled to reversal of the termination of his parental rights because the district court declined to appoint counsel for him in the CHIPS case?

III. Did the district court abuse its discretion in terminating father's parental rights?

ANALYSIS

I. The record supports the district court's termination of mother's parental rights.

Whether to terminate 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). "We review the district court's findings in a TPR proceeding to determine whether they address the statutory criteria for termination and are not clearly erroneous ... in light of the clear and convincing standard of proof." In re Welfare of Children of K.S.F. , 823 N.W.2d 656, 665 (Minn. App. 2012). "A finding is clearly erroneous if it is manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id . (annotation omitted). "We defer to the district court's decision on termination if at least one statutory ground for termination is supported by clear-and-convincing evidence and termination is in the children's best interests." Id ."A district court abuses its discretion if it improperly applies the law." In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 93 (Minn. App. 2012)

A. Mother does not challenge the district court's findings of statutory grounds to terminate her parental rights.

Mother does not challenge the district court's findings of the existence of multiple statutory grounds to terminate her parental rights. Nevertheless, in this case, we will invoke our discretion to briefly consider whether the evidence is sufficient to clearly and convincingly establish a statutory basis for termination under Minn. Stat. § 260C.301 (2016).⁴ See Minn. R. Civ. App. P. 103.04 (stating that appellate courts may address any question in the interests of justice).

Among other statutory grounds, a district court may terminate parental rights if it finds that a parent has "substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship." Minn. Stat. § 260C.301, subd. 1(b)(2). Parental duties include, but are 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." Id . The district court must also determine that, at the time of termination, the parent is not presently able and willing to assume her responsibilities and that the condition will continue for the reasonably foreseeable future. See In re Welfare of J.K. , 374 N.W.2d 463, 466-67 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985).

Here, the district court found that mother has substantially, continuously, or repeatedly refused or neglected to comply with her parental duties "by failing to remain sober and continuing the use of controlled substances." This is well-supported by the record. N.F. has been in foster care since December 2015, and mother was not caring for N.F. before removal. Mother has continued to struggle with drug use despite multiple opportunities for treatment. Mother's relapses and continued use of controlled substances prevented her from parenting or even meaningfully interacting with N.F. through visits and phone calls. The record supports the district court's findings concerning this statutory basis for termination, and the district court acted within its discretion in finding that a statutory basis for termination of mother's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) was proved.

B. The record supports the district court's finding that the county made reasonable efforts to reunify N.F. with mother.

Mother argues that the services offered her were not reasonable. Specifically, she argues that the county lacked knowledge concerning her mental-health issues and that the county did not monitor or incorporate her mental-health treatment and therapy into its reunification plan.

In most TPR cases, the petitioner must show clear and convincing evidence that reasonable efforts were made to reunite the parent with the child. In re Children of T.A.A ., 702 N.W.2d 703, 708 (Minn. 2005). Minnesota law requires the district court to find whether "reasonable efforts to finalize the permanency plan to reunify the child...