In re Welfare of the Children of K.S.F.

• Decision Date: 15 October 2012
• Docket Number: No. A12–0631.,A12–0631.
• Citation: 823 N.W.2d 656
• Parties: In the Matter of the WELFARE OF the CHILDREN OF K.S.F., a/k/a K.B., Parent.
• Court: Minnesota Court of Appeals

823 N.W.2d 656

In the Matter of the WELFARE OF the CHILDREN OF K.S.F., a/k/a K.B., Parent.

No. A12–0631.

Court of Appeals of Minnesota.

Oct. 15, 2012.

Syllabus by the Court

The standard of proof in a termination-of-parental-rights proceeding is clear-and-convincing evidence.

William Ward, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN, for appellant mother K.S.F.

Michael O. Freeman, Hennepin County Attorney, John March, Assistant County Attorney, Carrie Weber (certified student attorney), Minneapolis, MN, for respondent Hennepin County Human Services and Public Health Department.

Jody M. Alholinna, El–Ghazzawy Law Offices, LLC, Minneapolis, MN, for guardian ad litem Linda Semmer.

Considered and decided by LARKIN, Presiding Judge; WORKE, Judge; and COLLINS, Judge.^*

OPINION

LARKIN, Judge.

Appellant-mother challenges the district court's termination of her parental rights, arguing that (1) the standard of proof in a termination-of-parental-rights proceeding is clear-and-convincing evidence, (2) the record does not clearly and convincingly support the statutory determinations necessary to terminate her parental rights, (3) the evidence does not clearly and convincingly establish that termination is in her children's best interests, and (4) the district court erred by refusing to transfer legal and physical custody of the children to appellant's mother as an alternative permanency option. Because (1) the district court did not clearly err in its findings of fact, (2) the record contains clear-and-convincing support for the district court's determinations that a statutory ground for termination exists and that termination, as opposed to a legal-custody transfer, is in the children's best interests, and (3) the district court's resulting decision to terminate parental rights was not an abuse of discretion, we affirm.

FACTS

Appellant-mother, K.S.F., has six children: G.J., born March 31, 1992; A.J., born July 28, 1993; X.F., born October 7, 1994; K.B., born July 17, 2001; and twin girls, J.S.B. and J.A.B., born September 30, 2010. A.J. has a child (appellant's grandchild), K.W., who resided with appellant when the underlying child-protection case began. Only appellant's twins are the subject of this appeal. The twins' father is J.B. J.B.'s parental rights were terminated by default, and he is not a party to this appeal.

Approximately two weeks before the twins were born, appellant moved to Minnesota from Illinois. Medical records indicate that she had almost no prenatal care prior to her hospital admission in Minnesota. The twins were born four weeks prematurely and were underweight at birth: J.S.B. weighed five pounds, twelve and one-half ounces, and J.A.B. weighed just under five and one-quarter pounds. When the twins were born, appellant and her daughter K.B. were living in a homeless shelter in Minneapolis, and appellant did not have any supplies for the twins. On October 4, 2010, appellant and the twins were released from the hospital with a discharge plan that included follow-up visits at the Hennepin County Medical Center (HCMC), as well as home visits from a public-health nurse.

On October 22, the public-health nurse visited appellant at the homeless shelter where she was staying. The nurse reported that the twins were extremely hungry and that appellant had no formula for the twins other than the small bottles that the hospital had sent home with her. Later, appellant, the twins, two of her other children, and appellant's grandchild moved to the People Serving People Homeless Shelter (PSP), where they shared a room with two beds. The public-health nurse cited several concerns about appellant's living situation at PSP, noting that it was chaotic, that appellant “[did not] always feed [the] babies when they appear[ed] hungry, and [did not] change diapers very frequently.” The nurse also witnessed the twins being fed from propped bottles and noted that appellant did not seem concerned about the fact that the twins had lost weight. Moreover, appellant did not use the Crisis Nursery service after being referred by the nurse. Finally, the nurse noted that appellant paid very little attention to the twins.

Appellant did not bring the twins to their scheduled one-week checkup in accordance with her hospital discharge plan. However, when the twins were three-weeks old, appellant brought them to HCMC for a wellness check. Appellant also brought her nine-year-old daughter, K.B., and her seven-month-old grandson, K.W., to this appointment. The attending physician observed that K.B. primarily cared for the twins and K.W., and that K.W. nearly fell from the examining table several times. The physician observed K.B. place J.S.B. in a stroller with a blanket over her face. The physician spoke with appellant about the dangers of covering the infants' faces with a blanket, but after leaving and returning to the room, the physician found the twins in the stroller with heavy blankets covering their mouths and noses.

The physician was concerned regarding the twins' weights. Despite repeated instructions to hold the bottle so the infants could drink their formula, appellant left bottles propped on their chests while the children unsuccessfully attempted to drink. Appellant reported that she was feeding the twins one five-ounce bottle split between them—an insufficient amount. The physician concluded that J.A.B. had gained a suboptimal amount of weight after her discharge from the hospital and that J.S.B. had lost weight. J.S.B. was hospitalized for failure to thrive, and gained weight steadily after her hospital admission.

A report of child maltreatment was made to Hennepin County Human Services and Public Health Department (department), and a finding of maltreatment was made against appellant for neglect of the twins.¹ An emergency-protective-care (EPC) hearing was held on October 27, 2010, and the twins were ordered into out-of-home placement with interim custody awarded to the department. The children have been in foster care placement since that time, except for a trial home visit with appellant from June 6 to August 4, 2011.

On November 22 and 29, 2010, appellant met with a parenting assessor who recommended that appellant: (1) complete a psychiatric evaluation; (2) participate in individual therapy; (3) participate in parenting education; (4) participate in family therapy; (5) utilize the services of PSP to develop family independence; and (6) participate and comply with all medical appointments and recommendations of her children's physicians.

On December 15, the twins were adjudicated children in need of protection or services (CHIPS) pursuant to a settlement agreement. Legal custody of the children was transferred to the department. The district court ordered appellant to follow a case plan that included the following components: (1) follow all recommendation of the parenting assessment; (2) complete a parenting education program; (3) complete a psychiatric consultation if recommended by the psychological assessment; (4) participate in individual therapy; (5) complete family therapy; (6) seek safe and stable housing; (7) cooperate with the children's medical providers and attend appointments; and (8) cooperate with the department's social workers and guardians ad litem.

With the help of PSP, appellant moved into a two-bedroom apartment in late February 2011. However, she was evicted from the apartment in December 2011, and at the time of trial, she lived in the basement of the home that her mother was renting.

Pursuant to her case plan, appellant underwent two psychological examinations. In the first examination, a psychologist at HCMC determined that appellant has intellectual limitations, Borderline Intellectual Ability, and an IQ of 69. A second psychologist diagnosed appellant with Borderline Intellectual Functioning. Both psychologists advised that appellant would need assistance in providing adequate care and parenting to her children.

Appellant was also referred to the Center for Child Abuse Treatment and Prevention and to a public-health nurse for in-home parenting education. She began weekly in-home sessions in March 2011. The in-home parenting worker reported that appellant had “little engagement with the twins.” The parenting worker also reported, that although appellant has the ability to understand the parenting information that was provided, she did not apply the information she received. Lastly, the parenting worker reported that she did not see improvement during the eight months that she worked with appellant.

A public-health nurse also worked with appellant to provide parenting education and in-home medical services, with a focus on childhood nutrition, growth, and development. On her first visit, the nurse noted that appellant paid little attention to the twins and did not acknowledge that one of the twins was crying. Appellant had to be reminded several times to pick up the child and to feed her. The nurse noted that during her visits, appellant struggled to focus on the twins, needed to be reminded to feed them, and often did not have sufficient food for them. The twins were often left in their car seats, despite encouragement to let them crawl and develop motor skills. Twice, the nurse found the twins sitting in very wet diapers.

The foster parents also observed appellant's difficulties in adequately feeding the twins. In early March, the foster parents picked up the twins after a four-hour visit with appellant, found the twins hungry and crying, and concluded that appellant had missed a scheduled feeding time. In April, appellant called the foster parents to state that she was feeding the twins water because she had no formula. That same month, while the twins were in appellant's care for an overnight visit, appellant failed to bring them to their scheduled well-baby checkup. When the foster parents inquired about the appointment, app...