In the Matter and the Welfare of Child of K.B., No. A09-0124 (Minn. App. 9/15/2009)
| Decision Date | 15 September 2009 |
| Docket Number | No. A09-0124.,A09-0124. |
| Parties | In the Matter and the Welfare of the Child of: K. B. and J. B., Parents |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Hennepin County, File No. 27-JV-07-12004.
James A. Kamin, Fourth District Chief Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN (for appellant parents).
Michael O. Freeman, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, Health Services Building, Minneapolis, MN (for respondent county).
Bruce Jones, Faegre & Benson, Minneapolis, MN (for guardian ad litem).
Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Stauber, Judge.
In this termination-of-parental-rights (TPR) proceeding, appellants mother and father challenge the order terminating their parental rights, arguing that the district court erred by (1) terminating mother's parental rights, in part, for failure to comply with parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2) (2008), because that ground is not included in the TPR petition; (2) terminating mother's parental rights for palpable unfitness to parent, Minn. Stat. § 260C.301, subd. 1(b)(4) (2008), because the record does not support termination on this statutory ground; and (3) terminating the parental rights of both parents for a failure to correct the conditions leading to the out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5) (2008), because the record does not support termination on this statutory ground. Because the record provides clear and convincing evidence to support two statutory grounds for the termination of mother's parental rights, we affirm the termination of her parental rights. Because the record does not support termination of father's parental rights on the basis set forth in the order, we reverse and remand the termination of his parental rights.
Appellant mother K.B. gave birth to Ke.B., her sixth child, on September 8, 2007. On September 12, the Hennepin County Human Services and Public Health Department (county) filed an expedited petition to terminate the parental rights of both mother and appellant father, J.B., under Minn. Stat. § 260C.301, subd. 1(b)(4), (5) (2006). Ke.B. was immediately placed in out-of-home care.
Mother has a history of chemical abuse and has unsuccessfully undergone chemical dependency treatment numerous times. In August 2007, when mother was in her third trimester of pregnancy with Ke.B., she voluntarily entered a chemical dependency treatment program and began a methadone maintenance treatment program. Because she admitted to using heroin during treatment, she was discharged from the program within a week. The county was notified of mother's advanced pregnancy and that she has significant mental health and chemical dependency issues.
Mother has five other children and an extensive history with child protection services. Because of substance abuse and maltreatment issues prior to her pregnancy with Ke.B., mother voluntarily transferred the legal and physical custody for four of her children and voluntarily terminated her parental rights to a fifth child, who had tested positive for methamphetamine at birth.
Although not married, father and mother lived together for an extended time. Ke.B. has never lived with father because at the time of Ke.B.'s birth, father was incarcerated in the Prairie Correctional Facility in Appleton for a felony weapons possession conviction. Father remains incarcerated, and his expected release date is September 14, 2010. Father may be illiterate. He is also the apparent father of four of mother's other children. However, because father has not established paternity for the other children, his parental rights to those children have not previously been legally determined.
At the outset, a county social worker began developing case plans related to Ke.B. for both mother and father. Mother's case plan required her to complete a chemical dependency program, a psychological evaluation, and a parenting assessment; undergo urinalysis (UA); participate in a methadone treatment program; and establish a visitation plan with Ke.B. In addition, mother's plan required her to follow all recommendations from her chemical dependency treatment counselors, her psychological evaluation, and her parenting assessment.
Mother was provided and had access to numerous services and addressed several items in her case plan. Mother completed a parenting assessment with Dr. Reena Pathak, who reported that mother may need more knowledge of redirection and calming techniques for infants and toddlers. Dr. Pathak also reported that mother had an elevated "faking good" score during testing, which indicated she was attempting to provide acceptable answers and may be less likely to discuss her own personal deficits. Dr. Pathak concluded that mother would have overall difficulties parenting her children.
Mother also underwent a psychological evaluation with Dr. Pathak, and she was diagnosed with features of antisocial and obsessive-compulsive personality disorders. Dr. Pathak recommended that mother complete chemical dependency treatment, follow through with her case plan, and undergo individual therapy, cognitive and dialectical behavior therapy, and intensive parenting education. Dr. Pathak also recommended that mother reside in a sober house and have support to maintain her sobriety.
Mother had difficulty in completing chemical dependency treatment programs. As stated earlier, she was discharged from one program in early August 2007. She then entered another inpatient program with RS Eden. In that program, mother relapsed and was placed on probation. She also engaged in several drug solicitation behaviors, including inquiring how to identify drug dealers and what the costs of the drugs were, obtaining prescription medications from other patients, and testing positive for benzodiazepines. Because of her consistent drug solicitation behaviors, mother was discharged from the RS Eden program in November 2007. Mother smoked marijuana and used heroin while she was out of the program. Mother was readmitted to RS Eden on December 10, 2007. After returning to the program, staff reported that mother made elaborate explanations and excuses for her previous behavior.
In April 2008, mother completed the RS Eden treatment program. In her discharge papers, her counselor reported that mother was "lazy" in her recovery and tended to minimize her mistakes. The RS Eden counselor recommended that mother be placed and continue to live in safe, sober, and supportive housing for at least two years.
The county social worker placed mother in a safe, sober, and supportive housing program. Just two weeks after entering the housing program, mother tested positive for cocaine during a random UA. Because of the positive test, she was required to provide another sample at Hennepin County Medical Center (HCMC). But the UA at HCMC was invalid because mother substituted clean urine for that test. Mother has a history of tampering with tests, and she admitted to saving clean urine to avoid an adverse test result. Mother also blamed the positive test for cocaine on bacteria growth. In addition, mother admitted to the county social worker that she took Vicodin because she was upset that she had been subjected to a UA and was upset with the guardian ad litem regarding visits. Mother was not asked to leave the housing program, but she was placed on restrictions, and a second incident would have resulted in her termination from the program.
On May 17, 2008, against the advice of the county social worker, mother voluntarily left the sober housing program and rented a room in a single-family home with people whom she did not know. Mother was involved in at least one incident of violence at the home after she moved in. In addition, the rental made mother ineligible for many sober housing programs. Mother's social worker recommended that she move into a shelter, at least for a short term, so that she could qualify for admission to a new sober housing program, but mother refused to follow the social worker's advice.
In March 2008, mother's social worker referred her to Family Focus for parenting education classes, but mother did not attend this program. In May 2008, mother began attending a parenting program designed to support women with chemical health issues. Although the program facilitator agreed that mother was making progress, she noted a few incidents of concern and that she was unable to do home visits due to mother's living situation. The facilitator also testified that mother would need to maintain sobriety and participate in the program for at least a year before she would be ready to parent independently.
Mother had numerous supervised visits with Ke.B. The reports from the supervisors indicate that mother had difficulty picking up Ke.B.'s cues as to what his needs were. One report noted with concern that mother gave Ke.B. Tylenol or Motrin because he felt warm without first checking to see if he had a fever or had previously been given some medication.
Mother began seeing an individual therapist in February 2008. The therapist testified that she hoped that with another six months to one year of treatment and parenting interaction, mother could be reunited with Ke.B. The therapist also testified that she believed that mother's decision to leave sober housing made successful completion of treatment less likely.
In April 2008, due to mother's progress on her case plan, the parties reached a settlement on the TPR initiative. Mother would admit that Ke.B. was a child in need of protection and services, and Ke.B. would be so adjudicated. In exchange, the county would not pursue a termination of her parental rights. But mother's relapse in May 2008,...
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