In the Matter of the Child of: C. A. L. and R. C. R., Parents.

This opinion will be unpublished and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
A14-1938

In the Matter of the Child of: C. A. L. and R. C. R., Parents

Filed April 20, 2015
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-JV-12-11235

Wright S. Walling, Brandon M. Zumwalt, Walling, Berg & Debele, P.A., Minneapolis,
Minnesota (for appellants)

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

Jonathan G. Steinberg, Chrastil and Steinberg, PLLP, Minneapolis, Minnesota (for
guardian ad litem Sally Thomas)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Klaphake, Judge.

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 UNPUBLISHED OPINION

LARKIN, Judge

Appellants challenge the district court’s denial of their motion for adoptive-

placement under Minn. Stat. § 260C.607 (2014), arguing that the district court erred by

failing to apply the rules of adoption procedure, denying their request for depositions, and

concluding that they did not meet their burden of proof. We affirm.

FACTS

On June 26, 2012, six-week-old P.R. was admitted to a hospital with serious

injuries, including multiple rib fractures, a skull fracture, various bruises and swelling,

and a subdural hematoma. Some of his injuries were up to three weeks old. A child-

abuse pediatrician evaluated P.R.’s injuries and concluded, without doubt, that P.R. had

been physically abused. At that time, P.R. and his parents resided in the home of

appellants, who are P.R.’s paternal grandparents. On July 2, respondent Hennepin

County Human Services and Public Health Department (the agency) filed a petition in

district court alleging that P.R. was a child in need of protection or services (CHIPS). On

December 18, the agency petitioned to terminate the parental rights of P.R.’s parents.

In April 2013, P.R.’s parents voluntarily terminated their parental rights, and the

district court appointed the Commissioner of Human Services as P.R.’s guardian. On

June 3, appellants moved for P.R.’s adoptive placement in their home under Minn. Stat.

§ 260C.607, subd. 6. Specifically, appellants requested an order (1) allowing them to

intervene in the adoptive-placement proceeding regarding P.R., (2) finding that the

agency did not reasonably consider them for adoptive placement, (3) placing P.R. with

2
them for adoption, and (4) finding that they made the necessary showing to obtain an

evidentiary hearing on their motion. The district court ruled that appellants established a

prima facie case warranting an evidentiary hearing and reserved rulings on all other

aspects of appellants’ motion.

In October, the agency provided notice that P.R.’s current foster parents had

executed an adoption-placement agreement regarding P.R.

In November, appellants moved for a ruling that the Minnesota Rules of Adoption

Procedure would govern procedure and discovery, and not the Minnesota Rules of

Juvenile Protection Procedure. Appellants alternatively requested that, if the district

court were to apply the juvenile protection rules, the district court should allow them to

take depositions under Minn. R. Juv. Prot. P. 17.04. The district court denied appellants’

request for application of the Minnesota Rules of Adoption Procedure and reserved a

ruling on their request for depositions pending receipt of additional information regarding

the proposed depositions. The district court also directed appellants to complete an

adoption home study by December 23. On December 17, appellants filed an adoption

home study approving them to adopt P.R.

In January 2014, the parties agreed to a discovery order under Minn. R. Juv. Prot.

P. 17. In February, appellants filed a memorandum of law explaining their request to

depose P.R.’s guardian ad litem and foster parents. The district court denied appellants’

request for depositions.

In June, the supreme court filed an order promulgating amendments to the rules of

adoption procedure and juvenile protection procedure. One of the amendments clarified

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that discovery for a contested adoptive placement under Minnesota Statutes § 260C.607

is governed by the rules of juvenile protection procedure.

On July 29 and 30, the district court held an evidentiary hearing on appellants’

motion for adoptive placement and later denied the motion. This appeal follows.

DECISION

This appeal stems from a dispute regarding the adoptive placement of a child who

was placed under the guardianship of the Commissioner of Humans Services after the

termination of the parental rights of both of the child’s parents. “The responsible social

services agency has exclusive authority to make an adoptive placement of a child under

the guardianship of the commissioner.” Minn. Stat. § 260C.613, subd. 1(a) (2014).

However, a relative may seek adoptive placement under section 260C.607, subd. 6(a),

which provides:

At any time after the district court orders the child under the
guardianship of the commissioner of human services, but not
later than 30 days after receiving notice . . . that the agency
has made an adoptive placement, a relative . . . may file a
motion for an order for adoptive placement of a child who is
under the guardianship of the commissioner. . . .

The motion must make a prima facie showing that the agency has been

unreasonable in failing to make the requested adoptive placement. Id., subd. 6(b). If a

prima facie showing is made, the district court must set the matter for an evidentiary

hearing. Id., subd. 6(c). At the hearing, the agency must present evidence regarding why

it did not place the child with the moving party. Id., subd. 6(d). Next, the moving party

has the burden of proving, by a preponderance of the evidence, that the agency was

4
unreasonable in failing to make the requested adoptive placement. Id. The statute further

provides:

At the conclusion of the evidentiary hearing, if the court finds
that the agency has been unreasonable in failing to make the
adoptive placement and that the relative . . . is the most
suitable adoptive home to meet the child’s needs using the
[best-interests] factors in section 260C.212, subdivision 2,
paragraph (b), the court may order the responsible social
services agency to make an adoptive placement in the home
of the relative. . . .

Id., subd. 6(e).

This appeal presents three issues: whether the district court erred by ruling that the

Minnesota Rules of Adoption Procedure did not apply to the underlying proceeding,

whether the district court erred by denying appellants’ request for depositions under the

Minnesota Rules of Juvenile Protection Procedure, and whether the district court erred in

finding that appellants did not prove that the agency was unreasonable in ruling them out

as an adoptive placement. We address each issue in turn.

I.

Appellants contend that the district court erred by ruling that the Minnesota Rules

of Juvenile Protection Procedure governed discovery in this matter, and not the

Minnesota Rules of Adoption Procedure. Appellants argue that the district court’s ruling

prevented them from taking depositions that would have been allowed under the adoption

rules. This court reviews the construction and application of procedural rules de novo.

Eclipse Architectural Grp. v. Lam, 814 N.W.2d 692, 696 (Minn. 2012).

5
 Minn. R. Adopt. P. 1.02 states that “[t]hese rules establish uniform practice and

procedure for adoption matters in the juvenile courts of Minnesota.” Appellants argue

that the evidentiary hearing in this case was prompted by a motion for adoptive

placement and that under the definition of “adoption matter” in Minn. R. Adopt. P.

2.01(c), this case “is certainly an adoption matter” and it should have proceeded under the

Minnesota Rules of Adoption Procedure. Appellants therefore argue that discovery in

this case was governed by Minn. R. Adopt. P. 17.01 and 17.02, which, at the time of the

district court’s ruling, provided that discovery in adoption matters was governed by the

Minnesota Rules of Civil Procedure. Appellants further argue that “[t]he Minnesota

Rules of Civil Procedure . . . are extremely different [than the Minnesota Rules of

Juvenile Protection Procedure] and allow for depositions to be taken without court

involvement.”

In response, the agency notes that appellants ignore that “the Minnesota Rules of

Adoption Procedure were amended to eliminate any ambiguity that may have existed”

regarding whether the adoption or juvenile protection rules govern discovery in a hearing

under Minn. Stat. § 260C.607, subd. 6. Minn. R. Adopt. P. 17.02 now states that

“discovery for a contested adoptive placement under Minnesota Statutes § 260C.607 is

governed by the Rule 17 of the Rules of Juvenile Protection Procedure.” The 2014

Advisory Committee Comment explains the amendment as follows:

Rule 17.02 provides clarification that discovery in the
case of a contested adoptive placement for a child under the
guardianship of the commissioner of human services is
governed by the Rules of Juvenile Protection Procedure.

6
 ....

Providing that the discovery rule in the Rules of
Juvenile Protection Procedure applies to motions challenging
adoptive placement decisions of the responsible agency made
under Minnesota Statutes Chapter 260C accomplishes two
things:

1. It strikes a balance between the need for expedited
decision-making and the child’s need for stability with the
parties’ need to access information, especially when the party
has had the ongoing right to raise issues about the agency’s
placement decision from very early in the proceedings; and
2. It continues the Rules of Juvenile Protection
Procedure in effect until an adoption petition is filed. This is
a bright line that helps avoid confusion about which rules or
parts of rules (the Juvenile Protection Rules or Adoption
Rules) apply to proceedings up to the point an adoption
petition is filed.

Minn. R. Adopt. P. 17.02 2014 advisory comm. note (emphasis added).

As to the timing of the rule change, the order promulgating the amendment states

that the amendment is “effective as of on July 1, 2014, and shall apply to all cases

pending or commenced on or after the effective date.” Order Promulgating Amendments

to the Rules of Juvenile Protection Procedure and the Rules of Adoption Procedure, No.

ADM10-8041 (Minn. June 12, 2014) (order).

In sum, the Minnesota Supreme Court amended the Minnesota Rules of Adoption

Procedure to explicitly state that those rules do not govern discovery in a contested

adoptive placement under Minn. Stat. § 260C.607 and that such discovery is governed by

Minn. R. Juv. Prot. P. 17. Moreover, the advisory comment describes the amendment as

a clarification, as opposed to a change. Lastly, the amended rule applies in this appeal,

7
because the case was pending on the effective date of the amendment. We therefore

discern no error in the district court’s refusal to apply the adoption rules.

II.

Appellants next contend that the district court erred by denying their request for

depositions under Minn. R. Juv. Prot. P. 17.04. The district court has wide discretion to

issue discovery orders, and absent a clear abuse of that discretion, its discovery orders

will not be disturbed. In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007).

Minn. R. Juv. Prot. P. 17.04 provides that the district court may, upon written request of

any party, authorize certain discovery methods. The portion of the rule relating to court-

ordered depositions provides:

(2) Order of Court. Following the initial appearance,
any party or the county attorney may move the court to order
the testimony of any other person or party be taken by
deposition upon oral examination, if:

(i) there is a reasonable probability that the
witness will be unable to be present or to testify at the hearing
or trial because of the witness’ existing physical or mental
illness, infirmity, or death;
(ii) the party taking the deposition cannot
procure the attendance of the witness at a hearing or trial by a
subpoena, order of the court, or other reasonable means[;] or
(iii) upon a showing that the information sought
cannot be obtained by other means.

Minn. R. Juv. Prot. P. 17.04(b)(2).

Before ruling on appellants’ motion for depositions under Minn. R. Juv. Prot. P.

17.04, the district court asked appellants to identify who they wanted to depose and the

reasons for the depositions. In response, appellants submitted a memorandum of law,

8
requesting to depose P.R.’s guardian ad litem and foster parents. As to the guardian ad

litem, appellants stated that “little is known about the Guardian ad Litem and her

placement preference in this case.” Appellants noted that they had requested a copy of

the guardian ad litem’s file directly from her and were awaiting receipt of that file.

However, appellants expressed concern that the file “may be insufficient to explain her

position for supporting the foster parents” and the reports in the file “may not address her

underlying reasons and substantiations for favoring placement” with a nonrelative. As to

the foster parents, appellants stated they wanted “to seek further information regarding

the foster parents’ home, ability to provide care and openness to family contact.”

Appellants stated that “without depositions, [they] will be unable to gather additional

information relating to the foster parents, including [the foster parents’] home,

occupations, caregiving and criminal history.”

Appellants’ argument for depositions was as follows:

Ultimately this is a contested adoption matter . . . .
[T]he evidentiary hearing in this matter is the new contested
adoption trial. . . . [Appellants] must be allowed under the
statute to at least gain further information on the county’s
proposed adoptive family [(i.e., the foster parents)]. Without
said information, [appellants] are unable to provide any
independent information to the court about why the county
chose the proposed adoptive family that it did.

. . . The [agency] must be reasonable not only in ruling out
the [appellants] in this matter, but in a comparative analysis
of the proposed adoptive parents. . . . [A]s designed by
[Minn. Stat. § 260C.607, subd. 6], this information is to be
given to the court in one hearing, so that if the court rules that
the [agency] was unreasonable – then it can immediately look
to the child’s best interests as to who placement should be
with. . . . [Minn. Stat. § 260C.607, subd. 6] has designed this

9
 evidentiary hearing procedure with the intent to allow the
parties to gather all necessary information for both tasks[,]
that of the [agency’s] reasonableness and that of best
interests, and present this to the court. In an effort to provide
the court with all it may need in this hearing to do its duty
under the statute, and with an eye towards efficiency,
[appellants] respectfully request an opportunity to conduct
depositions.

(Emphasis omitted.)

In denying appellants’ request for depositions, the district court reasoned, in part,

that information regarding the guardian ad litem’s opinion was available through means

other than a deposition. The district court noted that the guardian ad litem would most

likely testify at the hearing, appellants had indicated they would obtain the guardian ad

litem’s file directly from her, and the guardian ad litem had filed reports that were

available to appellants. The district court’s reasoning is consistent with the standards for

granting or denying a motion for depositions under Minn. R. Juv. Prot. P. 17.04(b)(2),

and was not an abuse of discretion.

As to appellants’ request to depose the foster parents, the district court reasoned

that “the evidentiary hearing is solely to determine whether the [agency] acted

unreasonably in excluding [appellants] from the adoptive placement proceedings” and

that it was therefore “irrelevant to order the depositions of the foster parents at this stage

in the case.” The district court noted that:

The purpose of the upcoming evidentiary hearing is to
determine whether the [agency] acted unreasonably in its
decision to exclude [appellants] from the adoptive placement
proceedings. The hearing is not a comparison between who
would provide better care for the child, but instead, to decide
whether the [agency] was unreasonable in ruling out

10
 [appellants] as an adoption option. . . . If the court determines
unreasonableness then it may be more relevant to take a
comparative view of [appellants] with any other potential
adoptive placements, including the current foster parents. . . .
However, that is not the nature of the evidentiary hearing, and
therefore, at this point in the proceedings, allowing
[appellants] to depose the foster parents is irrelevant.

The district court concluded that information regarding the foster parents is “irrelevant at

this stage and will remain irrelevant unless the court finds the [agency’s] decision to

eliminate [appellants] from the adoptive placement procedure unreasonable.”

The district court clearly communicated its intent to bifurcate the evidentiary

hearing under Minn. Stat. § 260C.607, subd. 6. It would first consider and determine

whether the agency had been unreasonable in failing to place P.R. with appellants. If the

district court determined that the agency acted unreasonably, it would then consider

whether appellants were the “most suitable adoptive home to meet the child’s needs.”

Minn. Stat. § 260C.607, subd. 6(e). That approach is consistent with the plain language

of the statute. See Minn. Stat. § 260C.607, subd. 6(e) (stating the district court is not

authorized to order the responsible agency to place the child in the moving party’s home

unless the district court finds that “the agency has been unreasonable in failing to make

the adoptive placement and that the relative or child’s foster parent is the most suitable

adoptive home to meet the child’s needs”) (emphasis added); Tuthill v. Tuthill, 399

N.W.2d 230, 232 (Minn. App. 1987) (stating that, when the moving party failed to show

a prerequisite for modifying maintenance, the district court did not need to address other

factors in the modification analysis).

11
 Given the district court’s bifurcated approach and its determination that appellants

did not prove that the agency acted unreasonably, information regarding the foster

parents’ suitability as an adoptive placement was irrelevant and inadmissible.1 See Minn.

R. Evid. 402 (“All relevant evidence is admissible . . . . Evidence which is not relevant

is not admissible.”); Minn. R. Evid. 401 (“‘Relevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.”); Minn. R. Juv. Prot. P. 3.02, subd. 1 (indicating that, generally, the juvenile

court shall admit only evidence that would be admissible in a civil proceeding under the

rules of evidence). Appellants therefore were not prejudiced by the district court’s ruling.

Thus, the alleged error stemming from the district court’s refusal to allow appellants to

depose the foster parents does not provide a basis for this court to reverse. See Midway

Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (stating that to

prevail on appeal, an appellant must show both error and prejudice resulting from the

error); In re Welfare of Children of J.B., 698 N.W.2d 160, 171 (Minn. App. 2005)

(applying Midway in a termination-of-parental-rights case).

III.

Lastly, appellants contend that the district court erred in determining that they

failed to prove that the agency was unreasonable in ruling them out as an adoptive

placement. The parties disagree regarding the applicable standard of review. Appellants

1
We note that the district court’s order indicates that appellants agreed that testimony and
evidence regarding the foster parents was not relevant and would not be admitted at the
evidentiary hearing.

12
argue that because the determination ultimately impacts P.R.’s adoptive placement, the

decision should be reviewed for an abuse of discretion. See re K.L.B., 759 N.W.2d 409,

412 (Minn. App. 2008) (stating that appellate courts review a district court’s decision

regarding an adoption petition for an abuse of discretion), review denied (Minn. Feb. 25,

2009). A district court “abuse[s] its discretion by making findings unsupported by the

evidence or by improperly applying the law.” Silbaugh v. Silbaugh, 543 N.W.2d 639,

641 (Minn. 1996).

The agency argues that generally, a determination regarding reasonableness is one

of fact that should be reviewed for clear error. See Pikula v. Pikula, 374 N.W.2d 705,

710 (Minn. 1985) (stating that a district court’s factual findings are reviewed for clear

error). The agency relies on other areas of the law in which reasonableness is treated as a

question of fact. See, e.g., Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 884-85

(Minn. 2000) (reasonableness of insured’s refusal to attend an independent medical

exam); Haug v. Comm’r of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991)

(reasonableness of driver’s refusal to take a breath test). The agency’s argument is

consistent with the language of section 260C.607, subdivision 6(e), which provides that

if, “[a]t the conclusion of the evidentiary hearing . . . the court finds that the agency has

been unreasonable in failing to make the adoptive placement . . . .” (Emphasis added.)

This court has previously held that a summary denial of a motion for adoptive

placement under section 260C.607, subdivision 6, is reviewed under the same standards

that apply to a dismissal of a motion for custody modification, reasoning that “[a] motion

for adoptive placement is analogous to a motion to modify custody.” In re Welfare of

13
L.L.P., 836 N.W.2d 563, 570 (Minn. App. 2013). But this court has not determined

which standard of review applies to the denial of a motion under section 260C.607,

subdivision 6, after an evidentiary hearing or, as is the case here, to a post-hearing denial

based solely on the moving party’s failure to prove that the agency acted unreasonably.

We leave the specific identification of the correct standard of review for another day

because, as explained below, the record supports the district court’s determination

regarding reasonableness under either the abuse-of-discretion or clearly erroneous

standard of review.

We now turn to appellants’ assertion that the agency failed to provide “any

reasonable consideration for adoptive placement of P.R. with [a]ppellants.” The district

court’s findings of fact refute that assertion. At the evidentiary hearing, the district court

heard testimony from two adoption workers and from appellants, and it received 85

exhibits. The district court made detailed findings of fact based on that evidence. It

found that after the termination of parental rights, paternal-grandmother requested

adoption assistance from the agency, the agency held a team meeting to consider the

circumstances under which P.R. was removed from his parents and decided not to

consider appellants for adoption for the following reasons:

17.1 [P.R.] was injured on more than one occasion
while residing in [appellants’] home.

17.2 [Appellants] were in the home, had access, and
provided care, to [P.R.] on the day he was hospitalized.

17.3 [The agency] believed it was not in the best
interest to place [P.R.] back into the home where the injuries
were discovered and may have occurred.

14
 17.4 [The agency] would continue to oppose
[appellants] for adoption even if the current foster care
providers were not placement options.

17.5 [Appellants] were aware of the chemical and
mental health issue the parents experienced and still left
[P.R.] alone with them.

17.6 The decision to rule out [appellants] was
unanimous.

The district court also found that during the initial juvenile-protection proceedings,

the agency contacted appellants about foster placement and adoption, but did not consider

them further because:

16.1 [Appellants] were part of the child abuse
investigation and at the emergency protective care hearing on
July 2, 2012, the Court found that “there are no services or
efforts available which could allow [P.R.] to safely remain in
the home.”

16.2 [P.R.] could not be placed in foster care with
[appellants] while the parents resided in their home. The
mother did not move out until September 2012, and moved
back in in March 2013, and the father reported that when he
was released from the workhouse in April 2013, he intended
to move back with [appellants].

16.3 In the Order for CHIPS Adjudication filed
October 16, 2012, the Court found that “[P.R.’s] parent made
an explicit request that [the agency] not consider relatives for
placement of [P.R.] and the Court found that this was
consistent with the best interest of the child and relieved [the
agency] of its relative search requirements under Minn. Stat.
§ 260C.221.

16.4 [Appellant-grandmother] told the kinship
worker on October 1, 2012, that she was fine with a non-
relative adopting [P.R.] so long as she could maintain a
connection with him.

15
 16.5 [Appellants] proposed a family friend as an
adoption resource at the Family Group Conference on
January 9, 2013, not themselves. Their other son, [P.R.’s]
uncle, supported the foster parents to adopt [P.R.] so [P.R.]
would be in a neutral setting.

16.6 [P.R.]’s mother continued to oppose either
maternal or paternal relatives as adoption resources for the
child throughout the proceedings.

As to appellants’ testimony at the hearing, the district court found that

“[appellants] were aware of the parents’ chemical and mental health, as well as anger

issues yet left them alone with [P.R.]” and that “[appellants] do not accept any

responsibility for [P.R.’s] injuries.”

As to the reasonableness of the agency’s decision not to place P.R. with

appellants, the district court found:

The record, overall, supports the reasonableness of [the
agency’s] decision to not consider [appellants] for adoptive
placement of [P.R.] as they failed to provide a safe home
environment while [P.R.] resided in their home and failed to
respond appropriately when the severe injuries to [P.R.] were
discovered.

19.1 [Appellants] had knowledge that the parents had
mental health and chemical abuse issues.

19.2 [Appellants] knew that the parents were not
mature enough to be parents yet allowed and expected them
to be the primary caregivers for [P.R.].

19.3 The father of [P.R.], [appellants’] son, has a
history of explosive and violent behavior and there were
instances of domestic violence while the parents resided with
[appellants].

19.4 The mother was smoking marijuana and the
father was using drugs while they resided in [appellants’]

16
 home. [Appellant-grandmother] believed her son smoked
bath salts and that [the biological mother] was bi-polar.

19.5 [P.R.’s] injuries were sustained on more than
one occasion during the first six weeks of his life, yet
[appellants] were unaware that [P.R.] had any prior injury
other than a bruise on his nose, which they believed happened
when his father dropped his cell phone.

19.6 The actions of [appellants] during the time
[P.R.] resided with them shows a significant lack of
awareness and disregard for [P.R.’s] health and wellness.

Appellants do not specifically assign error to any of the district court’s findings.

Instead, they argue that the record evidence shows that the agency acted unreasonably by

relying on “materially false information,” by conducting an inadequate investigation, and

by failing to give first consideration to appellants, as relatives, for adoptive placement.

Appellants made those arguments in district court, and the court’s findings imply that the

district court rejected them.2 Appellants seem to expect this court to reweigh the

evidence, assess witness credibility, and substitute our assessment of the evidence for the

district court’s findings. That approach, which resembles a trial de novo, would be

improper. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (1988) (stating that it is

inappropriate for appellate courts to reweigh the evidence, find facts, or assess credibility

on appeal).

We will not make new findings on appeal. And because our review of the record

reveals adequate support for the district court’s findings that the agency acted reasonably

and its implicit rejection of appellants’ arguments to the contrary, we do not disturb the

2
Appellants’ briefing in this court regarding reasonableness is nearly identical to their
posthearing written closing argument in the district court.

17
findings. See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating

that appellate courts need not “discuss and review in detail the evidence for the purpose

of demonstrating that it supports the trial court’s findings”); Peterka v. Peterka, 675

N.W.2d 353, 357-58 (Minn. App. 2004) (applying Wilson in a family law appeal).

Having determined that the district court’s factual findings are not clearly

erroneous, we next consider whether the district court improperly applied the law.

Appellants argue that the district court improperly imposed an elevated standard of care

on them. They contend that they were excluded from placement solely because P.R.’s

injuries occurred in their home. Appellants do not offer legal argument or authority in

support of their argument. Instead, they offer a policy argument: “[t]he district court’s

rationale . . . has a substantial likelihood of creating a chilling effect on multi-

generational households. As is the case here, [a]ppellants have been penalized for

offering their home . . . due to the fact that the district court has now imposed a higher

level of care upon [a]ppellants for [P.R.’s] safety.” Appellants’ policy-based argument is

unavailing because the court of appeals is not a policy-making court. See Sefkow, 427

N.W.2d at 210 (“The function of the court of appeals is limited to identifying errors and

then correcting them.”).

Moreover, appellants’ argument grossly oversimplifies the district court’s analysis.

The district court’s order includes a six-page supporting memorandum, which sets forth

its reasoning. The district court explained:

[Appellants] have argued they were not the primary or
custodial caregivers and therefore were not responsible for
[P.R.’s] well being while [P.R.] was residing in their home.

18
 However, the testimony indicates that [appellants] invited
their son, [P.R.’s] mother and [P.R.] into their home based on
their concern the parents did not possess the ability to safely
parent [P.R.]. [Appellants], apparently, perceived some threat
to [P.R.’s] welfare and had some doubts about the ability of
the parents to protect [him]. Therefore, [appellants] bear
some responsibility for what happened in their home.
[Appellants] were aware of their son’s temper and of the
chemical abuse and mental health issues of both parents.
[Appellants] took in [P.R.] and parents because they had
concerns, which appear to have been confirmed during the
time the parents were in their home, that they (the biological
parents) were not able to be responsible parents. [Appellants]
provided financial support and at times stepped in to bathe,
change and rock the child. They cannot avoid responsibility
for the welfare of [P.R.] simply because they were not the
“custodial” or “primary” caregivers. It is reasonable to hold
[appellants] to an elevated standard as caregivers, given they
are the child’s grandparents, were aware of the biological
parents’ issues, and offered their home as [a] place of safety
where the impact of those issues on the child would be
reduced.

(Emphasis added.)

The district court noted that on the day P.R. went to the hospital, appellant-

grandmother checked on P.R. after she heard him crying around 6:30 a.m. She observed

that P.R.’s father was sleeping by the computer. Appellant-grandmother observed that

P.R. was cold, rocked him, and left for work. P.R.’s babysitter arrived at approximately

9:00 a.m., noticed marks on P.R., and notified appellant-grandfather. Appellant-

grandfather woke P.R.’s father, who looked at P.R.’s injuries and went back to sleep.

Appellant-grandfather called appellant-grandmother and told her about the injuries.

Then, appellant-grandfather and the babysitter left the home, leaving P.R. with his

sleeping father. The district court acknowledged that appellant-grandmother returned

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home and took P.R. to the hospital. But the district court noted that appellant-grandfather

called appellant-grandmother around 11:15 a.m., but P.R. was not initially seen at the

hospital until 3:45 p.m.

The district court also noted that appellants had sufficient opportunity to observe

P.R.’s parents’ inadequacies while they resided in appellants’ home. Appellants

suspected that the parents abused chemicals. Appellants witnessed domestic arguments

between the parents. The district court noted that P.R. was known to cry for hours and

that appellant-grandmother described him as colicky, and yet P.R. “was left with a father

who had demonstrated the inability to control his temper and who once punched several

holes in the wall during an argument.” The district court also noted that the parents’

continued presence in appellants’ home after P.R.’s removal and appellant-grandfather’s

testimony that he felt “cut off” from P.R.’s father support the agency’s concern that

appellants would not limit contact between P.R. and his father, who remained a suspect in

the criminal investigation of P.R.’s injuries.3

The district court reasoned that

[t]he question of the reasonableness [of the agency’s]
decision not to place the child with [appellants] must be
examined in the context of the circumstances of the infant’s
first [six] week[s] of life. [Appellants] offered a place to stay
and support for [P.R.’s] parents because they had concerns for
the parents[’] ability to care for themselves and the child. . . .

....

3
Appellants do not assign error to any of the factual statements in the district court’s
supporting memorandum.

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 [Appellants], while providing support for the parents
and the child and having a reasonable understanding of the
problems and shortcomings of the parents did not provide the
supervision and protection of the child which their offer of
support suggested. The parents and child were not tenants in
[appellants’] home but rather family members receiving
shelter and support. [Appellants] voluntarily undertook a
greater duty to the child and they failed to fulfill that duty.

(Emphasis added.)

We discern no error in the district court’s reasoning. The district court’s

references to an “elevated standard” and to appellants’ “greater duty” to P.R. were merely

a way of describing the particular facts and circumstances of this case, which the district

court appropriately considered. The district court wisely assessed the reasonableness of

the agency’s placement decision by considering all of the circumstances surrounding the

child’s injury, including circumstances suggesting that appellants assumed some

responsibility for P.R.’s safety and did not meet that responsibility. It defies common

sense to suggest that the district court should have ignored evidence showing that

appellants had some responsibility to ensure P.R.’s safety in their home and failed to do

so. Although section 260C.607, subdivision 6, does not identify factors to be considered

when assessing the reasonableness of an agency’s placement decision, the extent to

which the proposed adoptive parent has had responsibility for the child’s care and safety

and whether that person met the child’s needs seem to be obvious considerations. We

therefore conclude that the district court did not impose an improper legal standard.

Near the end of their brief, appellants note that “[t]he district court’s determination

that [they] were rightly excluded from consideration is a decision made without any

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attempt to examine the best interest factors of the minor child.” Appellants ask us to

remand the case “so the district court can make a well-rounded, fact-based decision

regarding [P.R.’s] best interests.” It is not clear whether appellants’ best-interests

discussion is an attempt to assign error to the district court’s application of section

260C.607, subdivision 6, or merely to set forth their requested remedy in the event that

we find reversible error on other grounds. Appellants’ brief seems to recognize that

although section 260C.607, subdivision 6(e), requires that the district court determine the

most suitable adoptive home for the child, using statutory best-interests factors, that

requirement was not triggered because the district court did not find that the agency

unreasonably failed to place P.R. with appellants. See Minn. Stat. § 260C.607, subd. 6(e)

(requiring consideration of the child’s best interests “if the court finds that the agency has

been unreasonable in failing to make the adoptive placement”) (emphasis added). We

therefore construe appellants’ best-interests discussion as a request for a remedy and

conclude that because they have not shown reversible error, we need not discuss it

further.

In conclusion, we remind appellants that error on appeal is never presumed; “[i]t

must be made to appear affirmatively before there can be reversal” and “the burden of

showing error rests upon the one who relies upon it.” Loth v. Loth, 227 Minn. 387, 392,

35 N.W.2d 542, 546 (1949) (quotation omitted). Appellants have not shown that the

district court erred in determining that they failed to meet their burden of proof under

section 260C.607, subdivision 6(d). We therefore affirm.

Affirmed.

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