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(Cite as: 2005 WL 1804833 (Minn.App.))

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.

In the Matter of the CHILDREN OF J.L. W. and P.M. H., Parents.

No. A05-20.

Aug. 2, 2005.

Ramsey County District Court, File Nos. J402555778, J103552931, JX04550153, J304550382.

Laura K. Box, Shakopee, MN, for appellant P.M.H.

Patrick McGee, St. Paul, MN, for respondent mother.

Susan Gaertner, Ramsey County Attorney, Margaret L. Gustafson, Special Assistant Ramsey County Attorney, St. Paul, MN, for respondent Ramsey County Human Services Department.

Paul W. Bergstrom, St. Paul, MN, for guardian ad litem.

Considered and decided by SHUMAKER, Presiding Judge; KLAPHAKE, Judge; and WILLIS, Judge.

UNPUBLISHED OPINION

GORDON W. SHUMAKER, Judge.

*1 On appeal, appellant--father argues that the district court lacked sufficient evidence to terminate his parental rights. Specifically, he argues that the district court erred by (1) erroneously considering his incarceration status in determining that he had abandoned his children; (2) determining he had refused to comply with his parental duties; (3) determining that he was palpably unfit to parent; (4) finding that he exposed a child to egregious harm; and (5) determining that the children were neglected and in foster care. Appellant further argues that the district court erred in concluding that the county had provided active efforts, as required by the Indian Child Welfare Act, to reunify the family. Because the district court had sufficient evidence to terminate appellant's parental rights and because the county's efforts to unify the family were futile, we affirm.

FACTS

Mother-J.W. and father--appellant-P.M.H. are the parents of two children C.W., born November 23, 2002, and M.E., born January 14, 2004. J.W. is eligible for enrollment in the Leech Lake Band of Ojibwe. At the start of J.W.'s and P.M.H.'s relationship, J.W. was 15 years of age and P.M.H. was 36 years of age. P.M.H. is currently incarcerated after pleading guilty to criminal sexual conduct against J.W. A CHIPS petition was filed with respect to C.W. three days after her birth, and M.E. has been in an out-of-home placement since one day after her birth. J.W. signed a consent-to-adopt form for both children on September 7, 2004, in which she voluntarily terminated her parental rights. On February 2, 2004, a termination of parental rights (TPR) petition was filed against father, P.M.H.

J.W.'s mother left J.W. in P.M.H.'s care. P.M.H. testified that he thereafter had a sexual relationship with J.W. for about 1 1/2 years. During the relationship, P.M.H. was physically and verbally abusive towards J.W. As a result, J.W.'s mother obtained an order for protection (OFP) against P.M.H. on behalf of J.W. In J.W.'s affidavit for the OFP, she states that P.M.H. assaulted her in his van, repeatedly hit her with closed fists, and smothered her until she eventually blacked out. The affidavit also states that P.M.H. made harassing and threatening phone calls to J.W. for a period of three weeks.

After P.M.H. was charged with criminal sexual conduct, he fled Minnesota with J.W. P.M.H. and J.W. were found in Arizona in June 2003, and P.M.H. was extradited to Minnesota. At that time, there were three outstanding warrants in Minnesota for P.M.H.'s arrest. On August 6, 2003, P.M.H. pleaded guilty to criminal sexual conduct in the third degree and was released pending his sentencing. P.M.H. violated a no-contact order while on release, failed to cooperate with the presentence interview, and failed to appear at his sentencing hearing, resulting in a warrant for his arrest. P.M.H. was arrested on November 12, 2003, and was then sentenced to the commissioner of corrections for 33 months. P.M.H. testified that that once released he intends to reunite with J.W.

*2 P.M.H. has an extensive criminal history dating back to 1989. Charges in Ramsey County include attempted theft, offering forged checks, domestic abuse, disorderly conduct, and criminal sexual conduct. He has repeatedly violated his probation, was sentenced to 30 days in jail after pleading guilty to theft, and was sentenced to 90 days in the workhouse for attempted burglary and violation of a restraining order. Several orders for protection have been obtained against him by previous girlfriends, and he violated the OFP obtained by J.W. P.M.H. has a history of drug abuse and continued to use drugs, despite completing two in-patient chemical-dependency programs.

A trial was held on September 13, 2004, and November 4, 2004, on the termination of P.M.H.'s parental rights. Gloria Jourdain, the Ramsey County Community Human Services Department (RCCHSD) social worker involved with the family, testified that P.M.H. did not maintain contact with her or request visitation with the children. She also testified that she was in support of termination of P.M.H.'s parental rights. Rose Robinson, the Indian Child Welfare Act (ICWA) expert, testified that she supported termination of P.M.H .' s parental rights with respect to both children.

C.W. has been in foster care since November 26, 2002, and M.E. has been in foster care since January 14, 2004. The Leech Lake Band of Ojibwe approved the placement, and the foster parents now wish to adopt both girls.

DECISION

Standard of review

In reviewing the district court's decision to terminate parental rights,  "appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous." In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn .1997). On review, "[c]onsiderable deference is due to the district court's decision because a 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). District courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn.Stat. § 260C. 301, subd. 1(b) (2002). Proof of one criterion is sufficient, and the primary consideration in any termination proceeding is the best interests of the child. Id., subd. 7 (2002).

A court proceeding to terminate parental rights to a Native American child must comply with the Indian Child Welfare Act (ICWA). Minn.Stat. § 260C.001, subd. 3 (2002). The ICWA requires that the petitioning party show beyond a reasonable doubt that "active efforts" were made to prevent the breakup of the Native American family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d) (2002) (requiring active efforts); In re Welfare of M.S.S., 465 N.W.2d 412, 419 (Minn.App.1991) (requiring proof of active efforts beyond a reasonable doubt).

1. Termination of parental rights

*3 The district court terminated P.M.H.'s parental rights on the basis of  Minn.Stat. § 260C. 301, subds. 1(b)(1), 1(b)(2), 1(b)(4), 1(b)(6), and 1(b)(8) (2002). P.M.H. argues that the district court lacked sufficient evidence to terminate his parental rights under any of the statutory criteria.

a. Subd. 1(b)(1)--Abandonment

The district court may terminate parental rights upon a finding that a parent has abandoned his or her child. Minn.Stat. § 260C.301, subd. 1(b)(1). The Minnesota Supreme Court has determined that abandonment requires: (1) actual desertion of the child and (2) an intention to forsake the duties of parenthood. In re Staat, 287 Minn. 501, 505, 178 N.W.2d 709, 713 (1970).

P.M.H. argues that a finding of abandonment may not be predicated solely on his incarceration status. However, the court may consider the fact of incarceration in conjunction with other evidence that supports a finding of abandonment. See In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn.App.1997), review denied (Minn. Apr. 15, 1997); see also In re Welfare of R.W., 678 N.W.2d 49, 56 (Minn.2004) (finding abandonment despite incarceration when appellant failed to maintain direct contact with children during incarceration and failed to inquire about their welfare). The district court did not base its decision solely on P.M.H.'s incarceration status. The court found that P.M.H. has never requested visitation of either child, became a fugitive after being charged with the statutory rape of J.W., has never parented the children he has with other women, and has failed to provide county social workers with any contact information. P.M.H. has never had a relationship with either child and never previously shared any interest in having a relationship with the children. Because the record supports these findings, the district court's determination that P.M.H. abandoned the children was not error.

b. Subd. 1(b)(2)--Refusal to comply with parental duties

Minn.Stat. § 260C.301, subd. 1(b)(2), allows the juvenile court to terminate parental rights based on findings that "the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship...."

The district court found that, given P.M.H.'s extensive criminal history, he has "done nothing to show that his pattern of criminal behavior has changed or that he is now capable of caring for two young children." Although P.M.H. testified that he takes full advantage of any services available to him as a result of his incarceration, he acknowledges that it will be at least one to two years before he is stable enough to parent the children. P.M.H. was not present for the birth of either C.W. or M.E., initially denied paternity of C.W., and failed to contact Ms. Jourdain (RCCHSD social worker) regarding visitation with C.W. once his paternity had been conclusively established. Although P.M.H. testified that he was "pretty sure" he was the father of M.E., he again initially denied paternity of M.E. and failed to contact Ms. Jourdain regarding visitation once paternity had been established. The district court determined that P.M.H. has never had a relationship with either C.W. or M.E. and has not signed a recognition of parentage with respect to either child. The findings addressing the district court's decision to terminate P.M.H.'s parental rights under subd. 1(b)(2) address the statutory criteria and are not clearly erroneous.

c. Subd. 1(b)(4)--Palpably Unfit

*4 Minn.Stat. § 260C.301, subd. 1(b)(4), allows the district court to terminate parental rights based on findings that

a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of ... conduct ... or ... conditions directly relating to the parent and child 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.

 "If a parent's behavior is likely to be detrimental to the children's physical or mental health or morals, the parent can be found palpably unfit and have his parental rights terminated." In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn.App.2003).

There is sufficient evidence in the record to support the district court's conclusion that P.M.H. is palpably unfit. The district court made extensive findings regarding P.M.H.'s criminal history dating back to 1989. P.M.H. has a history of drug abuse and testified to having used crack cocaine, marijuana, and methamphetamine. He testified that he continued to use drugs, despite completing two chemical-dependency programs. Further, P.M.H. testified to having had sex with a 16-year-old girl in 1993, when he was 28 or 29 years of age. P.M.H. has a history of abusive behavior towards J.W. and testified that it would take at least another one to two years for him to become a stable parent. Therefore, the district court's decision that P.M.H. is "palpably unfit" to parent and, for the reasonably foreseeable future, will be unable to appropriately care for the children is supported by the record.

d. Subd. 1(b)(6)--Egregious Harm

Minn.Stat. § 260C.301, subd. 1(b)(6), allows the district court to terminate parental rights based on a finding "that a child has experienced egregious harm in the parent's care which is of a nature, duration, or chronicity that indicates a lack of regard for the child's well-being...." This ground for termination simply requires that a child has experienced egregious harm in the parent's care that demonstrates the parent's grossly inadequate ability to provide minimally adequate parental care to any child. Matter of Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn.App.1998).

There is sufficient evidence in the record to support the finding that P.M.H. has subjected a child to egregious harm. The district court found that P.M.H. engaged in a sexual relationship with J.W. when she was 14 years of age. At his sentencing hearing, P.M.H. admitted that he was involved in a sexual relationship with J.W. and knew that she was only 15 years old at the time. P.M.H. was charged in March 2003 with criminal sexual conduct and fled Minnesota. He was later found in Arizona with J.W. and extradited to Minnesota. The court also found that P.M.H. violated a no-contact order while on release pending sentencing. On this record, P.M.H. has inflicted upon a child the "egregious harm" which "demonstrates [his] grossly inadequately ability to perform minimally adequate parental care to any child" discussed in A.L.F., 579 N.W.2d at 155-56.

e. Subd. 1(b)(8)--Neglected and in foster care

*5 Minn.Stat. § 260C.301, subd. 1(b)(8), allows the juvenile court to terminate parental rights based on findings that the children are neglected and in foster care. The court is required to weigh seven factors when determining whether a child is neglected and in foster care: (1) the length of time the child has been in foster care; (2) any efforts the parents have made to adjust circumstances, conduct, or conditions that makes it in the child's best interests to return home in the foreseeable future; (3) whether the parent has visited the child within the three months before the filing of the parental-rights-termination petition; (4) the maintenance of regular communication with the person temporarily responsible for the child; (5) the adequacy of services provided to the parent to facilitate a reunion; (6) whether additional services would likely bring about parental adjustment, such that the child could be returned to the parent; and (7) the nature of the efforts made by the social-services agency to reunite the family. Minn.Stat. § 260C.163, subd. 9(1)- (7) (2002).

In this case, the evidence demonstrated that C.W. has been in continuous alternative care since November 26, 2002. M.E. has been in continuous alternative care since January 14, 2004. P.M.H. has been incarcerated for the majority of the children's lives. Although P.M.H. has participated in the services available to him in prison, he testified that he would be unable to care for the children for at least one to two years and still needs to undergo sex-offender treatment. P.M.H. has failed to maintain any contact with the county social worker responsible for the children and has not had visitation with either child. P.M.H. contacted the social worker, Gloria Jourdain, twice prior to the termination proceeding. Once during July 2003, he called Ms. Jourdain to tell her that J.W. was taking drugs and should not have custody of C.W. During the second phone call P.M.H. reported that J.W. had gone to Florida. P.M .H. did not request visitation or inquire as to what he could do in order to gain custody of C.W. Ms. Jourdain testified that from November 26, 2002, to the fall of 2003, P.M.H.'s whereabouts were unknown. Therefore, the district court's determination that C.W. and M.E. are neglected and in foster care is not clearly erroneous.

Finally, because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the district court may not terminate parental rights if the record does not show that termination is in the child's best interests, even if one or more of the statutory prerequisites for termination exist. In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn.App.1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn.1998). The best-interests analysis requires the court to balance the child's interest in preserving the parent-child relationship, the parent's interest in preserving the parent-child relationship, and any competing interests of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn.App.1992). Although the district court did not make explicit findings with respect to the balancing test, the record demonstrates that the district court considered that termination of P.M.H.'s parental rights was in the best interests of the children. P.M.H. has never had a relationship with the children, and his extensive criminal history, denial of paternity, and failure to maintain contact with the individuals caring for the children demonstrate that he is unable to properly parent C.W. and M.E. Further, the district court found that the children require permanency and stability in order for them to develop healthy attachments to their caregivers. Therefore, the district court's determination that termination is in the best interests of the children was not clearly erroneous.

2. Active Efforts

*6 In order to terminate parental rights regarding a Native American child, the petitioning party must demonstrate that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d) (2002). These "active efforts" must be proved beyond a reasonable doubt. Welfare of M.S.S., 465 N.W.2d at 418.

C.W. and M.E. are Native American children for ICWA purposes. P.M.H. argues that the county failed to provide active efforts to reunify his family. Specifically, he contends that he was never offered a written case plan, visitation with the children, or any other services in order to prevent the termination of his parental rights. Although a written case plan is required, when the parent's lack of cooperation is responsible for the county's failure to construct a plan, the absence of a written plan is not reversible error.  In re Welfare of R.M.M. III, 316 N.W.2d 538, 542 (Minn.1982) (upholding the termination of parental rights notwithstanding the county's failure to prepare a placement plan). Although federal law requires legitimate efforts to reunify a Native American Family, it does not impose a duty to persist in efforts that are destined for failure. See, e.g., People in Interest of P.B., 371 N.W.2d 366, 372 (S.D.1985).

Here, there is ample, convincing support in the record that the county's offer of services would have been futile. P.M.H. has never had a relationship with either child, initially denied paternity as to both, has previously shown no interest in being a parent, and has been incarcerated for most of the children's lives. He failed to provide county social workers with any contact information, and from November 23, 2002, to November 13, 2003, P.M.H.'s whereabouts were completely unknown. RCCHSD was prepared to provide services to P.M.H. had he made any attempt to maintain contact with the social workers assigned to the family or to allow them to contact him. On the two occasions that P.M.H. did contact the RCCHSD social worker involved, he called only to update RCCHSD on the activities of J.W. and did not request visitation with either child or inquire as to what he could do to obtain custody of the children. In fact, P.M.H. has not had any visitation with either child. Finally, P.M.H. has made no efforts to change his criminal behavior and concedes he is currently in no position to parent the children. Because the record supports a decision that efforts to reunify the family would have been futile, we cannot say that any failure to satisfy the technical requirements of 25 U.S.C. § 1912(d) is fatal to the district court's decision to terminate P.M.H.'s parental rights.

Affirmed.

Not Reported in N.W.2d, 2005 WL 1804833 (Minn.App.)