In re Welfare of Children of L. M. O., 021218 MNCA, A17-1485
| Judge | Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and Smith, Tracy M., Judge. |
| Parties | In the Matter of the Welfare of the Children of: L. M. O., S. W., II, and M. N. O., Sr., Parents. |
| Date | 12 February 2018 |
| Court | Minnesota Court of Appeals |
| Docket Number | A17-1485 |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
Anoka County District Court File No. 02-JV-16-528
Susan Drabek, Circle Pines, Minnesota (for respondent L.M.O.)
S.W., II, Kincheloe, Michigan (pro se respondent)
Dorothy M. Gause, Stillwater, Minnesota (for appellant M.N.O., Sr.)
Tony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County Attorney, Anoka, Minnesota (for respondent Anoka County)
Sarah Ellsworth, Anoka, Minnesota (for respondent child)
Kathleen Glewwe, Ramsey, Minnesota (guardian ad litem)
Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and Smith, Tracy M., Judge.
BJORKMAN, Judge
This appeal concerns the transfer of permanent legal and physical custody of a child from his biological parents to relatives. Appellant-father challenges the transfer, arguing that (1) the record does not support the district court's findings regarding the transfer of custody, (2) the county failed to make adequate reunification efforts, and (3) the district court's determination regarding the child's best interests is flawed and insufficient. We affirm.
FACTS
The child came to the attention of Anoka County Social Services (the county) in early March 2016, when he was nine years old and living with his father, appellant M.N.O. Sr.; his mother, respondent L.M.O.; and his then 16-year-old half-brother.1 The county investigated a report that father had struck the child with a phone cord. Both the child and his half-brother reported a history of father abusing them, detailing various incidents and showing scars on their bodies. The county also learned that father has a history of alcohol abuse, and that the parents have a history of domestic abuse against each other. The family agreed to work with the county, and the county returned the child and his half-brother to the family home subject to a safety plan.
Within weeks, father took the child to a bar, returning home around 1:00 a.m. Father fell asleep on the toilet while the child fell asleep on the living room floor. In the morning, father's brother came to the apartment and discovered father unconscious on an overflowing toilet and the child asleep in a puddle of toilet water. Father's brother was concerned for the child's safety and removed him from the home. When father awoke and discovered the child missing, he called the police. The responding officers noted that father was visibly intoxicated, spoke with father and father's brother to learn what had happened, and arrested father for child endangerment. The child subsequently returned home, and the county continued to work with the family.
On May 31, the county conducted a home visit. The investigator noted an "overwhelming" ammonia-like smell of animal urine and feces. The bunk beds in the boys' room were covered in plastic and lacked sheets; it appeared the children slept on the plastic. And the top bed appeared to have dried feces on the plastic covering. In the basement, there were three apparently malnourished dogs and the floor was covered in urine and feces. The washing machine contained a moldy comforter, and father reported that the family used the bathtub to wash clothes. Because of concerns about these living conditions, the county placed both boys on an emergency hold.
The county filed a petition alleging that the children are in need of protection or services (CHIPS). Both children were adjudicated CHIPS as to mother in June, and they were placed with their maternal great aunt and uncle in mid-August. Father was subsequently served with the petition, and on November 28, the district court adjudicated the child CHIPS based on father's unwillingness or inability due to emotional or mental disability to provide proper care and a safe living environment for the child. See Minn. Stat. § 260C.007, subd. 6(3), (8), (9) (2016).
The county established a case plan for father, and the district court ordered him to comply with it. Under the plan, father was required to (1) complete a chemical-dependency evaluation and follow all recommendations; (2) complete a psychological evaluation and follow all recommendations; (3) abstain from all mood-altering substances, including but not limited to alcohol; (4) submit to random urinalysis testing, with a directive that all missed or diluted tests would be presumed positive; (5) complete a domestic-abuse program and follow all recommendations; (6) obtain safe and stable housing for himself and the child; and (7) show up consistently for visits with the child.
Father did not comply with his case plan. Instead, he continued to use marijuana and alcohol, largely failed to submit to random urinalysis testing, was irregular in his visitation, and lacked stable housing. He underwent the required psychological evaluation in March 2017, but disregarded the recommendation that he complete a psychiatric evaluation for medication management to help with his bipolar affective disorder, alcohol-use disorder, and cannabis-use disorder.
By April, the child had been in out-of-home placement for more than ten months. The county filed a petition to transfer permanent legal and physical custody of both boys to their maternal great aunt and uncle with whom they had been living for eight months.
Father's case-plan compliance improved thereafter, but only slightly. He completed a chemical-dependency assessment in May and was diagnosed with a severe alcohol-dependency disorder. But he did not comply with the treatment recommendations and continued to disregard the recommendation that he manage his mental health through medication. He never consistently submitted to random urinalysis testing, sometimes refusing requested testing for months at a time. And while he participated in a domestic-abuse program and visited the child more regularly, especially after the county found a St. Paul visitation site, he did not find stable housing. Rather, he continued to stay with friends or in his mother's one-bedroom apartment, where he could not be added to the lease.
Trial on the custody-transfer petition occurred on August 16, 2017. In his testimony, father acknowledged that he had not undergone chemical-dependency treatment; he completed only five of the 45 requested urinalysis tests and used both marijuana and alcohol into early 2017; and he had not followed the recommendation to seek medication for his bipolar disorder because he preferred to address it through meditation, yoga, diet, and vitamins.
A psychologist who evaluated the child testified that the child and father have an unhealthy, conflictual relationship, and that the child's living...
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