                           This opinion will be unpublished and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
                                      A15-1307

         In the Matter of the Welfare of the Child of: C. M. R. and T. P. D., Parents

                                 Filed February 16, 2016
                                Affirmed; motion granted
                                    Klaphake, Judge *

                     Hennepin County District Court Juvenile Division
                                File No. 27-JV-14-3495


Mary F. Moriarty, Hennepin County Public Defender, David W. Merchant, Assistant
Public Defender, Minneapolis, Minnesota (for appellant father)

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

Andrew Morant, Assistant Hennepin County Attorney, Minneapolis, Minnesota (for
mother C.M.R.)

Patricia Timpane, Minneapolis, Minnesota (guardian ad litem)


         Considered and decided by Stauber, Presiding Judge; Reilly, Judge; and Klaphake,

Judge.




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                          UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant T.P.D. challenges the termination of his parental rights to M., now four,

arguing that the district court abused its discretion by ruling that appellant failed to satisfy

the duties of the parent-child relationship and is palpably unfit to be a parent and by

concluding that termination of appellant’s parental rights is in M.’s best interest. Appellant

also moves to strike portions of respondent’s brief. Because we see no abuse of discretion,

we affirm; because the documents appellant moved to have stricken were not in the record,

we grant the motion.

                                       DECISION

       We review a district court’s ultimate determination that termination is in a child’s

best interest for an abuse of discretion. In re Welfare of Children of J.R.B., 805 N.W.2d

895, 905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012). Parental rights may be

terminated if a district court finds that at least one statutory basis is supported by clear and

convincing evidence. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn.

2008). The district court based its decision to terminate appellant’s parental rights on

findings that appellant had neglected the duties of the parent-child relationship and was

palpably unfit to be a party to that relationship and the conclusion that termination of

appellant’s parental rights was in M.’s best interests.

       1.     Neglect of duties of the parent-child relationship

       Parental rights may be terminated if the district court finds “that the parent has

substantially, continuously, or repeatedly refused or neglected to comply with the duties


                                               2
imposed upon that parent by the parent and child relationship, including . . . providing the

child with the necessary food, clothing, shelter, education and other care and control

necessary for the child’s physical, mental, or emotional health and development . . . .”

Minn. Stat. § 260C.301, subd. 1(b)(2) (2014). 1

       M. was removed from his parents’ home in August 2014, when he was two years

and eight months old. Two child-care professionals testified as to his condition at that

time. A child protection worker (C.P.W.) testified that M. was “very nonverbal,” made

“inaudible verbal grunts,” could not use words in sentences as most children his age do,

and lacked the social skills of children his age. A child services social worker (C.S.S.W.)

testified that M. had a cough, dry lips that were cracked and peeling, and severe diaper

rash; he acted out and could not speak or communicate; his major behavioral problems

were banging his head and frequent temper tantrums that could last for hours; he was

aggressive to the point of hitting and punching others; he was afraid of water and could not

be bathed; he did not sleep through the night; and he screamed if someone tried to touch

him. He “was very behind developmentally in his receptive language skills” and “severely

neglected.” The C.S.S.W. also noted that, since being in foster care, M. had made

significant improvement, was speaking in short sentences, and had stopped hurting himself.




1
  The statute also requires a finding that either reasonable efforts have been made by the
social services agency and have failed to correct the conditions on which the petition was
based or the agency’s reasonable efforts would be futile and therefore unreasonable.
Appellant does not dispute the district court’s finding that reasonable efforts were made
and that they failed to correct the conditions.

                                             3
       These professionals also testified about their experiences with appellant. C.P.W.

answered “no” when asked if (1) appellant “fully understands the developmental

challenges that [M.] faces,” (2) appellant “has demonstrated that he has the ability to keep

[M.] on track developmentally,” (3) appellant “has demonstrated that he is aware that [M.]

was behind when he came into the care and custody of the department,” and (4) appellant

thought he had a chemical dependency problem. C.P.W. also testified that appellant often

“presented as very angry, very upset, very hostile, . . . very short tempered, and that’s

concerning to me, from a child protection standpoint.” He said of appellant that it was

“concerning to have a client who engages in domestic violence and doesn’t seem to think

that that’s a problem.” When asked if he would be “concerned that [M.] would be in danger

in [appellant’s] care and custody, C.P.W. said “Yes, I would.” When asked if appellant

shows any insight into domestic violence, he answered, “Not really, no. There’s very little

insight at all.” C.P.W. testified that appellant’s visits with M. “were suspended because of

[appellant’s] failure to demonstrate sobriety” and had not been reinstated because of

appellant’s continued failure to demonstrate sobriety.       Finally, C.P.W. testified that

appellant could not meet M.’s needs and would not be able to do so in the reasonably

foreseeable future; therefore, C.P.W. recommended terminating appellant’s rights.

       C.S.S.W. testified about a visit of appellant with M. during November 2014:

              [M.] was crying most of the time. [Appellant] . . . was gone
              for . . . 20 minutes, and [M.] thought the visit was over, so he
              was really happy.
                     ....
                     . . . [M.] was in the waiting room with the current foster
              parents and . . . they were reading a book to him and he was


                                             4
              calmed down . . . . But then upon seeing [appellant] again come
              back and telling him he had to go back into the visitation room
              for more time with [appellant], he had a major meltdown. We
              had to end the visit.

       Appellant testified that he: (1) had assaulted M.’s mother twice, in January 2014

when M. was in their home, and in August 2014, after M. had been removed; (2) was still

angry with M.’s mother, although they were no longer together, and had no other anger

issues; (3) received his case plan in August 2014, but delayed in engaging in it because he

felt that he had done nothing wrong, nothing had been proved against him, and lots of

people have arguments; (4) was not cooperative with participating in anger management;

(5) had not completed the urinalysis tests required by the case plan because he used

marijuana for pain; (6) had not participated in parenting education required by the case

plan; (7) had not completed the mental health assessment required by the case plan;

(8) could understand M. and thought he communicated very well, although M. made only

guttural noises; (9) was not concerned about M.’s aggressive behaviors because he was

only three; and (10) had not been receptive to the case plan, but was now taking steps to

address domestic violence as it required.

       Particularly as it pertained to M. and to appellant’s progress with the case plan,

appellant’s testimony conflicted with that of C.S.S.W. and C.P.W. The district court

addressed these conflicts, finding that the testimony of C.P.W. and C.S.S.W. was “credible,

accurate and consistent,” while appellant’s testimony, particularly in regard to: (1) his

problems with anger and domestic violence, his need to address them, and the impact of

domestic violence on M.; (2) his lack of awareness or inaccurate reporting of M.’s



                                            5
aggressive behavior; (3) his use of marijuana; and (4) M.’s inability to communicate

verbally was not credible. “Considerable deference is due to the district court’s decision

because the district court is in a superior position to assess the credibility of witnesses.” In

re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). The district court’s findings are

supported by record evidence, and its conclusion that appellant neglected the duties of the

parent-child relationship was not an abuse of discretion.

       Appellant argues that the district court erred because it “relied upon [appellant’s]

earlier noncompliance instead of focusing on [his] skills and behavior at the time of the

trial” and that this court should reverse the termination of his parental rights. But none of

the four cases on which he relies for this argument supports his position. In re Children of

T.R., 750 N.W.2d 656, 658 (Minn. 2008) involved a county’s failure to show that it had

made reasonable efforts to reunite the parent and child, which is not an issue here; In re

Welfare of P.R.L., 622 N.W.2d 538, 545 (Minn. 2001) reversed this court’s decision and

reinstated the district court decision terminating the rights of a parent who, like appellant,

had not shown that the conditions leading to the out-of-home placement had been corrected

and had not complied with the case plan; In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn.

1996) affirmed a termination of the rights of a parent on grounds of palpable unfitness

where the parent, like appellant, would be unable to care for or meet the needs of the child

for the reasonably foreseeable future; and In re Welfare of J.W., 807 N.W.2d 441, 442-43

(Minn. App. 2011) concerned a parent whose rights to six older children had been

terminated and was therefore presumptively palpably unfit to be a party to the parent-child

relationship, which is not the case with appellant. The district court did not terminate


                                               6
appellant’s parental rights solely because appellant had neglected the duties imposed by

the parent-child relationship but also because there was no basis to assume that he would

not continue to neglect them.

       2.     Palpable unfitness

       Parental rights may also be terminated if there is clear and convincing evidence “that

a parent is palpably unfit to be a party to the parent and child relationship because of a

consistent pattern of specific conduct before the child or of specific conditions directly

relating to the . . . relationship . . . that renders the parent unable, for the reasonably

foreseeable future, to care appropriately for the ongoing physical, mental, or emotional

needs of the child.” Minn. Stat. § 260C.301, subd. 1(b)(4) (2014).

       The district court found that

              Due to [appellant’s] emotional instability, volatility, and drug
              use, [M.] came from a chaotic and unregulated home
              environment that resulted in [his] poor condition when he came
              into the custody of the Department. [M.] did not have access
              to necessary medical, educational, or emotional care and
              clearly suffered as a result. Furthermore, the Court finds that
              [M.]’s condition has improved significantly since being
              removed from the day to day care of his parents, which further
              indicates that [M.]’s poor condition was the result of the nature
              of [appellant’s] care rather than related to [M.]’s underlying
              conditions. [Appellant’s] emotional instability, anger, and
              drug use so substantially interfered with his ability to
              appropriately parent [M.] as to render [appellant] palpably
              unfit to be a parent. [Appellant], as a result of either willful
              deception or ignorance, was not aware of [M.]’s medical and
              emotional needs and [M.] suffered as a result of inadequate
              care.

       Appellant relies on T.R. to argue that the district court erred in basing its conclusion

that he is palpably unfit on his failure to comply with the case plan. But T.R. does not hold


                                              7
that failure to comply with a case plan may not be used as a grounds for ruling a parent to

be palpably unfit; it holds that, absent findings that the conduct indicating a failure to

comply with a case plan (in T.R., the failure to comply involved the parent’s use of

chemicals) was connected to the parent’s inability to provide for the child’s needs, the

failure to comply with a case plan was not a sufficient basis for a finding of palpable

unfitness. T.R., 750 N.W.2d at 663-64. Here, the district court explicitly found that:

(1) M.’s poor condition in April 2014, when he left appellant’s home, was due to the

“chaotic and unregulated environment” of that home and (2) the fact that M. had made

significant improvements after leaving appellant’s home indicated that appellant’s

emotional instability, anger, and drug use were partial causes of M.’s poor condition.

       Clear and convincing evidence supports the relevant findings, and the district court

did not abuse its discretion in ruling that appellant is palpably unfit to be a party to the

parent and child relationship. 2

       3.     Best interests of the child

       In termination proceedings, “the best interests of the child must be the paramount

consideration . . . .” Minn. Stat. § 260C.301, subd. 7 (2014). In determining a child’s best

interests, the district court considers the child’s interest in preserving the parent-child

relationship, the parent’s interest in preserving that relationship, and any competing

interests of the child. Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3).



2
 Appellant also argues that, because he raised two children who were 37 and 35 at the time
of trial, he is not palpably unfit to be a parent. But the fact that appellant was not palpably
unfit to be a parent more than 30 years ago does not mean that he is not palpably unfit now.

                                              8
       Here, M.’s interest is in an environment that provides him with stability and meets

his significant developmental needs that resulted from the two and a half years he spent

with his parents. The district court did not abuse its discretion in deciding that termination

of appellant’s rights was in M.’s best interests.

       Appellant argues in the alternative that the termination was premature and the

district court should have declared M. to be a child in need of protection or services

(CHIPS) for an extended period. For this argument, appellant relies on In re Welfare of

M.H., 595 N.W.2d 223 (Minn. App. 1999). But that case is distinguishable: it concerned

extending CHIPS status where the parent was not palpably unfit and had completed many

of the case-plan requirements and the parent’s failure to complete the parenting assessment,

was due to the “rather unfortunate advice” of her attorney. M.H., 595 N.W.2d at 228. Here,

appellant testified that the decision not to cooperate with the case plan was his own.

Moreover, while the district court in M.H. was within its discretion in continuing protective

foster care so the parent could fulfill conditions that would enable the child to return to her,

id. at 229, the district court here was equally within its discretion in concluding that,

because clear and convincing evidence indicated that two of the statutory criteria had been

met, termination of appellant’s rights was in M.’s best interests. 3

Affirmed; motion granted.




3
  Because the materials appellant moved to strike from respondent’s brief are not included
in the record, we grant the motion. See Minn. R. Civ. App. P. 110.01 (defining the record
on appeal). We note, however, that the information contained in those extra-record
materials was provided by other exhibits and by appellant’s own testimony.

                                               9
