                        This opinion will be unpublished and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
                                   A15-1539


                          In the Matter of the Welfare of the
                               Child of: C. J. S., Parent.


                                Filed March 7, 2016
                                      Affirmed
                                 Bjorkman, Judge


                           Hennepin County District Court
                              File No. 27-JV-15-164

Mary F. Moriarty, Chief Hennepin County Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant C.J.S.)

Michael O. Freeman, Hennepin County Attorney, Michelle A. Hatcher, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

Peter M. Routhier, Bruce Jones, Faegre Baker Daniels LLP, Minneapolis, Minnesota (for
guardians ad litem)

DeAundres D. Wilson, Wilson Law Office, P.A., Minneapolis, Minnesota (for respondent
G.D.)

      Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and

Kalitowski, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the termination of her parental rights, arguing that there is no

statutory basis for termination and termination is not in the best interests of the child.

Because clear and convincing evidence shows that reasonable efforts by the county failed

to correct the conditions leading to the child’s out-of-home placement and termination is

in the child’s best interests, we affirm.

                                            FACTS

       Appellant C.J.S. is the mother of D.D., born May 2, 2014. G.D. is the adjudicated

father of D.D. C.J.S. has a long history of mental-health problems stemming from

significant physical and sexual abuse she experienced throughout her childhood. While

pregnant with D.D., C.J.S. was admitted to the Hennepin County Medical Center after

reporting suicidal and homicidal thoughts. She was placed in a four-point restraint to

prevent her from harming herself or her unborn child, and diagnosed with major depressive

disorder with psychotic features. She was discharged after three days and prescribed

medication to address her mental-health problems. C.J.S. was referred to outpatient

treatment, but was discharged prior to D.D.’s birth due to attendance issues.

       On June 3, 2014, respondent Hennepin County Human Services and Public Health

Department received a report from Headway Emotional Health Services outlining C.J.S.’s

mental-health diagnosis and questioning her capacity to parent. D.D. was placed in

emergency protective care on June 4, and remains in foster care. On June 9, the department

filed a petition alleging that D.D. was in need of protection or services. The district court


                                              2
adjudicated D.D. as a child in need of protection or services based on C.J.S.’s admission

that her mental-health problems negatively affect her ability to parent D.D. The district

court ordered the department to create a case plan to address the issues and directed C.J.S.

to comply with it. The case plan required C.J.S. to complete a parenting assessment and

follow all recommendations, participate in parenting education, successfully complete all

services recommended by the Mother/Baby program, and comply with all mental-health

programming. And the plan permitted C.J.S. and G.D. to have supervised visits with D.D.

       On January 14, 2015, the department filed a petition to terminate the parental rights

of C.J.S. and G.D. The termination of parental rights (TPR) petition indicated that C.J.S.

was complying with certain aspects of her case plan, but that the department had concerns

about her ability to care for D.D. by herself, maintain her mental health, recognize signs of

sexual abuse, and protect D.D. from or report abuse by G.D. The concerns over sexual

abuse stem from G.D.’s daughter, Ga.D.’s, May 2010 report that G.D. had sexually abused

her. The department also asserted that G.D.’s mental-health concerns and alcohol use

impacted his ability to parent D.D.

       At the TPR admit/deny hearing, both parents denied the petition. C.J.S. requested

unsupervised visits with D.D., indicating that she was prepared to separate from G.D.,

focus on living independently, and show that she could meet D.D.’s needs. The district

court stated that if C.J.S. did so, and otherwise progressed with her case plan, it “would be

in a position to authorize unsupervised visits.” But rather than separate from G.D., C.J.S.

married him shortly thereafter.




                                             3
       The TPR trial took place over four days between April 7 and July 2, 2015. During

the trial, the district court heard testimony concerning C.J.S.’s lack of compliance with her

case plan. Mai Vang, a child-protection social worker, testified that C.J.S. successfully

completed the Mother/Baby program, which referred her to the Jepson Day Treatment

Program. C.J.S. was discharged from the Jepson program due to sporadic attendance and

failing to meaningfully engage with the program. At the time of trial, she had started

another program that met less frequently, but her attendance continued to be an issue.

Sandy Robinson, one of the guardians ad litem (GAL), testified that C.J.S. has not

adequately addressed her mental-health issues. She further opined that C.J.S. cannot parent

D.D., either independently or in conjunction with G.D. She also expressed concern over

the fact that C.J.S. and G.D. had not even progressed to unsupervised visits, despite

receiving nearly a year of parenting education and supervised visits. Pat Timpane, the

other GAL, concurred with Robinson’s opinion that C.J.S. cannot take care of D.D. on her

own and that C.J.S.’s mental-health issues are still a concern. Timpane testified that

C.J.S.’s mental-health issues had not been treated and that the issues that led to D.D. being

placed in foster care had not been addressed.          Both GALs and Vang testified that

termination of C.J.S.’s parental rights is in D.D.’s best interests.

       The district court heard extensive testimony regarding G.D.’s alleged sexual abuse

of Ga.D. Ga.D.’s ex-boyfriend, J.G., and her mother, J.W., testified that Ga.D. reported

the abuse to them. The district court also reviewed the transcript of the police department’s




                                               4
initial interview. Ga.D. recanted the allegations, and G.D. testified that he had been falsely

accused.1

       The GALs expressed concern about these abuse allegations and also over G.D. and

C.J.S.’s apparent fixation with changing D.D.’s diaper during supervised visits. G.D., in

particular, repeatedly applied ointment on the child’s vaginal area, even after her diaper

rash was nearly gone. Timpane characterized G.D.’s actions as unnecessary and performed

in an inappropriate way. On one occasion, G.D. spread D.D.’s legs so C.J.S. could take a

picture of D.D.’s vaginal area. This was reportedly done to document the rash for D.D.’s

doctor, but the record indicates that at the time the picture was taken the rash was nearly

gone. Both GALs also observed that G.D. was very controlling of C.J.S. and that she

deferred to his decisions with respect to D.D.’s care. Robinson further testified that she

believed there was a risk that D.D. might be sexually abused. In sum, the GALs were

concerned about C.J.S.’s inability or unwillingness to prevent D.D. from possible sexual

abuse by G.D.

       The district court terminated the parental rights of both C.J.S. and G.D. The district

court determined that the department had demonstrated by clear and convincing evidence

that both parents failed to comply with their parental duties, they were palpably unfit to

parent, that reasonable efforts had failed to correct the conditions that led to D.D.’s out-of-




1
  The department also elicited testimony that G.D. has grandiose ideas, including believing
that he had been dead once and that he could remember events that occurred when he was
as young as six weeks old.

                                              5
home placement, and that D.D. was neglected and in foster care. 2 The district court

expressly found that G.D., C.J.S., and Ga.D. were not credible witnesses, and that Ga.D.’s

recantation of the sexual-abuse allegations was suspect. C.J.S. moved for a new trial,

which the district court denied. C.J.S. appeals.

                                      DECISION

       Parental 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). Termination requires

clear and convincing evidence that (1) the county has made reasonable efforts to reunite

the family, (2) there is a statutory ground for termination, and (3) termination is in the

child’s best interests. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn.

2008). On appeal, we review the district court’s factual findings “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) (citation omitted). We review for abuse of discretion

a district court’s conclusion that the statutory requirements for termination have been

established. See In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900 (Minn. App.

2011), review denied (Minn. Jan. 6, 2012).




2
 The district court made an additional determination of egregious harm with respect to
G.D.

                                              6
I.     The district court did not abuse its discretion by concluding that reasonable
       efforts failed to correct the conditions that led to D.D.’s out-of-home placement.

       A district court may terminate parental rights if clear and convincing evidence

shows that reasonable efforts have failed to correct the conditions leading to the child’s

out-of-home placement. Minn. Stat. § 260C.301, subd. 1(b)(5) (2014). It is presumed that

reasonable efforts have failed upon a showing that (1) a child has resided outside the

parental home for a cumulative period of 12 months within the preceding 22 months;

(2) the court has approved an out-of-home placement plan; (3) the conditions leading to a

child’s out-of-home placement have not been corrected; and (4) reasonable efforts have

been made by the social services agency to rehabilitate and reunite the family. Id. It is

also presumed that the conditions leading to out-of-home placement have not been

corrected upon a showing that a parent has “not substantially complied with the court’s

orders and a reasonable case plan.” Id., subd. 1(b)(5)(iii).

       C.J.S. challenges the district court’s determination as to the third factor—that the

conditions that led to D.D.’s out-of-home placement have not been corrected.3 She argues

that the evidence produced at trial demonstrates that she has substantially complied with

her case plan. We are not persuaded. D.D. was adjudicated a child in need of protection

or services based on C.J.S.’s admission that her persistent mental-health problems

negatively impact her ability to parent. Her case plan required her to participate in

individual therapy, parenting education, and couples therapy. The record supports the



3
  C.J.S. does not dispute that the department made reasonable efforts to address the issues
leading to D.D.’s out-of-home placement.

                                              7
district court’s determination that C.J.S. has not substantially complied with these

requirements.

       The record amply demonstrates that C.J.S. has not made sufficient progress toward

addressing her mental-health concerns. The Mother/Baby Program referred her to the

Jepson program, which she did not complete. The discharge summary indicates that she

never progressed past the pre-treatment phase because she was resistant to setting goals,

did not participate in education offerings, and used the group setting to vent her feelings

about “the system.” Her resistance to treatment is reflected in her testimony that she does

not have a mental-health diagnosis. Vang testified about C.J.S.’s lack of participation and

attendance problems with regard to her individual therapy. She acknowledged that C.J.S.

had recently started a new program and was increasing her involvement, but testified that

this was a very recent development. The June 11 progress report—prepared during the

midst of the trial—shows that C.J.S.’s attendance continued to be sporadic. Both GALs

opined that C.J.S. had failed to adequately address her mental-health concerns. Robinson

testified that one of her main concerns was that the mental-health issues had been “assessed

and dropped.” Timpane similarly testified that C.J.S.’s mental-health problems are a “huge

concern” and that the issues that brought the matter to the department’s attention had not

been addressed.

       The record also supports the district court’s determination that the parenting issues

that led to D.D.’s out-of-home placement have not been corrected. Robinson testified that

the parenting issues had “barely been addressed.” Timpane testified that C.J.S. was still

unable to pick up on D.D.’s cues, and described C.J.S.’s engagement with D.D. as


                                             8
“scattered.” Vang also testified that C.J.S. continued to have problems responding to

D.D.’s cues. Multiple witnesses expressed serious concern over C.J.S.’s dependence on

G.D. Reports indicate that she was very deferential to G.D. during supervised visits and

hesitant to engage with D.D. Robinson also testified that she did not see C.J.S. “iniat[e]

any care on her own.” Neither GAL believed that C.J.S. had the skills or capacity to parent

D.D.

        Finally, the evidence shows C.J.S. has not complied with the case-plan requirement

that she process the sexual-abuse allegations against G.D. and gain an understanding of the

signs of sexual abuse in order to protect D.D. The department provided C.J.S. individual

therapy, couple’s therapy, and parenting-education classes to address this issue. Despite

these resources, C.J.S. refused to acknowledge that G.D. might pose a risk to D.D. C.J.S.

testified that she does not believe G.D. poses any risk to D.D. because he did not have an

inappropriate relationship with his other daughter. When asked “What if you’re wrong”

she responded “I’m not wrong.” After representing to the district court that she was

prepared to separate from G.D. to enable her to have unsupervised visits with D.D., she

chose to marry G.D. instead. And C.J.S. remained heavily deferential to G.D.’s parenting

decisions with respect to D.D. throughout the entire process. In short, the record supports

the district court’s determination that C.J.S. failed to meet the goals set forth in her case

plan.

        On this record, we conclude that C.J.S. did not rebut the statutory presumption that

reasonable efforts failed to correct the conditions that led to out-of-home placement. We

note that C.J.S. has recently made commendable efforts to increase her participation in


                                             9
individual therapy. But under all of the circumstances, this improvement is insufficient to

rebut the statutory presumption. See In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn.

App. 1985) (stating that “improvement immediately before the termination hearing” can

be insufficient to overcome the whole of a negative track record), review denied (Minn.

Nov. 25, 1985).4

II.    The district court did not abuse its discretion by determining that termination
       of C.J.S.’s parental rights is in D.D.’s best interests.

       The three primary factors in a best-interests analysis are “the child’s interest in

maintaining the parent-child relationship, the parents’ interest in maintaining the parent-

child relationship, and any competing interest of the child.” In re Welfare of M.A.H., 839

N.W.2d 730, 744 (Minn. App. 2013); see also Minn. R. Juv. Prot. P. 39.05 subd. 3(b)(3).

“Competing interests include such things as a stable environment, health considerations

and the child’s preferences.” K.S.F., 823 N.W.2d at 668 (quotations omitted). And,

“[f]inality is one factor to be considered in determining a child’s best interests.” In re

Welfare of Children of B.J.B., 747 N.W.2d 605, 610 (Minn. App. 2008). We review a

district court’s determination that termination is in the best interests of the child for an

abuse of discretion. J.R.B., 805 N.W.2d at 905.

       C.J.S. argues that the district court abused its discretion by determining that

termination is in D.D.’s best interests. We are not persuaded. First, the district court


4
  Because we conclude that reasonable efforts have failed to correct the conditions leading
to the child’s out-of-home placement, see Minn. Stat. § 260C.301, subd. 1(b)(5), we do not
consider the remaining statutory termination grounds. J.R.B., 805 N.W.2d at 906 (holding
that this court may affirm a termination of parental rights if at least one statutory basis for
termination is present and termination is in the child’s best interests).

                                              10
emphasized D.D.’s need for a stable, consistent, and safe environment with a caregiver that

could understand and meet her needs. The record amply supports the district court’s

determination that because C.J.S. is so engrained in her thinking and resistant to addressing

her significant mental-health concerns, it is highly unlikely that she will be able to parent

D.D. in the foreseeable future. Second, the district court noted, and we agree, that the

record demonstrates that C.J.S. loves D.D. and wishes to be reunited with her. But

competing concerns regarding C.J.S.’s capacity to care for D.D. outweigh C.J.S.’s

preference. Third, D.D.’s need for security and stability supports the district court’s best-

interests determination. D.D. has spent almost all of her young life in foster care. Her need

for finality favors termination of C.J.S.’s parental rights.

       Because we discern no error in the district court’s determination that C.J.S. did not

rebut the presumption that reasonable efforts failed to correct the conditions that led to

D.D.’s out-of-home placement and termination is in D.D.’s best interests, we conclude that

the district court did not abuse its discretion by terminating C.J.S.’s parental rights.

       Affirmed.




                                              11
