In the Matter of the Welfare of the Child of: A. M. J. and L. W. J., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1758

In the Matter of the Welfare of the Child of: A. M. J. and L. W. J., Parents.

Filed April 10, 2017
Affirmed
Stauber, Judge

Brown County District Court
File No. 08-JV-16-21

Adam W. Klotz, Minneapolis, Minnesota (for appellant A.M.J.)

Charles W. Hanson, Brown County Attorney, Bailey Breck Rolfsrud, Assistant County
Attorney, New Ulm, Minnesota (for respondent)

Marilyn Mueller, St. James, Minnesota (guardian ad litem)

Considered and decided by Rodenberg, Presiding Judge; Ross, Judge; and Stauber,
Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
In this appeal from the termination of he r parental rights, appellant A.M.J. argues
that her due-process rights were violated when the district court relied on a prior
termination of her parental rights that occurred in West Virginia to support a presumption
of palpable unfitness in the current proceeding. A.M.J. also asserts that she successfully
rebutted any presumption of palpable unfitness present in this case and that termination is
not in her child’s best interests. We affirm.
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FACTS
Appellant A.M.J. and L.W.J. are the parents of E.J.,1 born in 2015. Appellant’s
parental rights to two other children, ages three years and one year, were terminated in
West Virginia in September 2015, after the three-year-old child suffered severe injuries at
the hands of appellant’s boyfriend at that time. Appellant moved to Minnesota, where
she has family, in October 2015, and E.J. was born in Minnesota. Appellant returned to
West Virginia to plead guilty to misdemeanor charges of child neglect and giving false
information about a child’s injury; she was sentenced to serve six months in jail on the
first charge and one year on the second, but the sentences were suspended.
Probation supervision was transferred to Minnesota. Probation conditions prohibit
appellant from having children in her residence or having unsupervised visitation until
she is discharged from probation in 2019. Appellant complied with her probation
conditions by having E.J. live with L.W.J., until the county learned of sexual-abuse
allegations against him involving a child from another of his relationships.
The county filed a termination petition in February, 2016, alleging that appellant
was palpably unfit to be a party to the parent-child relationship based on the presumption
that arises when parental rights to another child are involuntarily terminated. The district
court issued an emergency-protective-care order on February 24, 2016, after learning of
sexual-abuse allegations against L.W.J. E.J. was placed with her maternal grandmother,
B.K.

1 L.W.J. voluntarily terminated his parental rights to E.J. on April 11, 2016, and is not a
party to this appeal.
3
In between the petition filing and the tria l, appellant engaged in personal therapy
and attended a six-week session at Life Work Planning Center for Women on decision-
making, goal-setting, assertive communication, boundaries, and self-esteem skills, as well
as three additional sessions on job skills. She took part in a domestic-abuse support
group until the group disbanded. Her therapist reported that she made progress in dealing
with depression and feelings of helplessness, and in understanding and resolving “issues
of domestic abuse in relationships.”
Appellant had supervised visitation with E.J. at B.K.’s home in Mankato. B.K.
testified that appellant visited the child between one and four times a week, depending on
her work schedule and the weather. B.K. stated that appellant was able to care
appropriately for E.J., and that the child was “responsive” to appellant. B.K. was willing
to adopt E.J. but thought that appellant should have a chance to parent E.J.
Appellant had been living with her father in Comfrey, but she rented a duplex in
Mankato two weeks before the termination trial. This unit was close to her mother’s
home. Appellant was working at Jackpot Junction, which is some distance from
Mankato. She was seeking work closer to Mankato.
Appellant’s probation agen t testified that she was complying with her probation
conditions, appeared to be stable and was “making progress.” Appellant’s probation,
with its restrictions on unsupervised contact with children, would end in February 2019,
with the possibility of being discharged up to 60 days earlier. The agent acknowledged
that appellant was taking part in several support classes or groups, but none of those
programs include parenting education.
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Three county employees, a child-protectio n worker, an adoption social worker,
and a social worker qualified as an expert, testified that adoption of the child by B.K. was
the best plan because it minimized the number of times the child would be moved, the
county had a preference for permanent placement, and “the most permanent option is
adoption.” Appellant would be unable to live with or care for the child alone because of
her probation restrictions. The child-protection worker stated that the child was well-
cared for by B.K. and that interactions between appellant and the child at a visit were
normal. The social-work expert was concerned about the West Virginia case history and
the relatively small amount of time that appellant spent with the child during supervised
visits.
The guardian ad litem (GAL) also supported adoption as a permanent solution for
E.J. The GAL was concerned about appellant’s “judgment, her decision-making, and not
that she would seek out someone abusive, but that . . . potentially, could happen to her yet
again.” There was a general acknowledgement that appellant would continue to be
involved in the child’s life after B.K., the maternal grandmother, adopted the child.
The district court’s termination order reflected additional concerns. The court
described the West Virginia charges and the three-year-old child’s injuries in some detail.
The court noted that the two fathers of appellant’s older children were both abusive and
L.W.J., E.J.’s father, was accused of sexual abuse with another child. The district court
found that although appellant interacted well with the child, she had never cared for her
in an unsupervised setting, and it was unclear how she would react in an emergency. The
district court concluded that appellant was not a credible witness, citing her false
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statements made to West Virginia police to protect her boyfriend, her concealment of her
pregnancy during the West Virginia proceedings, and her changing stories about her
relationship with L.W.J. Appellant testified that their relationship had ended in May or
June 2016, then later testified that it ended in June or July 2016. Facebook postings
showed contact in late July 2016. L.W.J. was at B.K.’s home with appellant and the baby
on August 15, 2016, four months after he voluntarily terminated his parental rights. Both
appellant and L.W.J. worked at Jackpot Junction.
The district court concluded that the presumption of palpable unfitness applied
because of the West Virginia termination and that appellant had failed to rebut the
presumption. The court further concluded that it was in E.J.’s best interests for
appellant’s rights to be terminated and for B.K. to adopt E.J. The district court denied
appellant’s motions for a new trial and/or amended findings. This appeal followed.
D E C I S I O N
A parent’s rights to a child may be invo luntarily terminated for any one of nine
grounds set forth in Minn. Stat. § 260C.301, subd. 1(b) (2016). We review the district
court’s findings in a termination matter for clear error and its decision to terminate for an
abuse of discretion. In re Welfare of Children of T.R., 750 N.W.2d 656, 660 (Minn.
2008) (findings); In re Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014)
(termination decision). An appellate court reviews the constitutionality of a statute as a
question of law. R.D.L., 853 N.W.2d at 131.
The district court terminated appellant’s parental rights based on a conclusion that
she was palpably unfit to be a party to the parent-child relationship because of specific
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conditions directly relating to the relationship that rendered appellant unable to care for
the child for the reasonably foreseeable future. Minn. Stat. § 260C.301, subd. 1(b)(4).
The district court relied on the statutory presumption that a parent is presumed to be
palpably unfit if the parent’s parental rights to one or more other children have been
involuntarily terminated. Id.
I.
Appellant argues that she was deprived of fundamental due-process rights by use
of the statutory presumption of palpable unfitness based on a prior termination of parental
rights. Appellant suggests that a West Virginia court may be more likely to involuntarily
terminate rights because the state retains the burden as to a subsequent termination,
whereas a Minnesota court may be more circumspect because of the “significant burden-
shifting impact on said parent’s subsequent child and parental rights.” Appellant
contends that this is “fundamentally unfair” because it “den[ies] the subject parent a
meaningful adversarial hearing both retroactively as to the West Virginia termination and
presently as to the Minnesota termination.” The district court rejected this argument in a
pre-trial hearing.
“The due process clause provides that th e state may not deprive a person of life,
liberty, or property without due process of law. The fundamental requirement of due
process is the opportunity to be heard at a meaningful time in a meaningful manner.” In
re Child of P.T., 657 N.W.2d 577, 586 (Minn. App. 2003) (quotations and citation
omitted), review denied (Minn. Apr. 15, 2003). For procedural due process, a parent is
guaranteed a “meaningful adversarial hearing.” See id. at 587-88. This includes an
7
impartial decisionmaker, an attorney, the opportunity to testify, call witnesses, and refute
evidence, and a requirement that the state demonstrate by clear and convincing evidence
that a parent is palpably unfit. Id. at 587.
Appellant does not allege that she was de nied a meaningful adversarial hearing in
West Virginia, where she was represented by an attorney and had a trial. In Minnesota,
appellant also had a trial, was represented by an attorney, and testified on her own behalf.
Her attorney cross-examined witnesses and called witnesses who gave favorable
testimony about appellant. Appellant was not denied her procedural due-process rights.
In P.T., this court recognized that parents have a “substantive due process right to
freedom from governmental interference in childrearing.” Id. at 588. But this court
concluded that the palpable-unfitness presumption was “narrowly tailored to meet a
compelling state interest” and did not violate a parent’s substantive due-process rights.
Id. at 589. Appellant argues, however, that the differing burdens of proof between West
Virginia and Minnesota law offend her substantive due-process rights.
In West Virginia, the stat e retains the burden of proving a finding of abuse or
neglect by clear and convincing evidence. In re C.M., 782 S.E.2d 763, 769 (W. Va.
2016). Even when invoking a presumption based on a previous termination, the burden
remains on the state, although the presumption “lowers the threshold of evidence
necessary for the termination of parental rights.” In re K.L., 759 S.E.2d 778, 783 (W. Va.
2014) (quotation omitted).
Under Minn. Stat. § 260C.301, subd. 1(b)(4 ), a parent is presumed to be palpably
unfit “upon a showing that the parent’s parental rights to one or more other children were
8
involuntarily terminated.” This court interpreted that to mean that a parent has the
burden of producing sufficient evidence to “allow a factfinder to find parental fitness.” In
re Welfare of the Child of T.D., 731 N.W.2d 548, 554 (Minn. App. 2007) (emphasis in
the original). The burden of persuasion, however, remains with the county. Id.
Appellant’s argument is not grounded in fact: she speculates that West Virginia
courts may be more likely to involuntarily terminate rights because it does not affect the
burden of proof in a subsequent hearing, whereas Minnesota courts may refrain from
doing so. Appellant provides no support for this position. Both states employ the
palpable-unfitness presumption in subsequent terminations, and both states place the
ultimate burden of persuasion on the state. Appellant has not met her burden of
demonstrating that the statute is unconstitutional. P.T., 657 N.W.2d at 583.
II.
Appellant argues that she has successfully rebutted the presumption of unfitness
and, therefore, the district court erred by relying on the presumption to terminate her
parental rights. The statutory presumption in Minn. Stat. § 260C.301, subd. 1(b)(4) is
“easily rebuttable.” R.D.L., 853 N.W.2d at 137. A parent has the burden of producing
“evidence that would justify a finding of fact that [the parent] is not palpably unfit” by
demonstrating that the parent is “suitable to be entrusted with the care of the children.”
Id. (quotations omitted). The supreme court described this as a lesser standard than clear-
and-convincing evidence. Id.
To rebut the presumption, a parent must show more than engagement in services; a
parent must demonstrate his or her ability to successfully parent a child. In re Welfare of
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Child of J.W., 807 N.W.2d 441, 446 (Minn. App. 2011), review denied (Minn. Jan. 6,
2012). In J.W., the parent rebutted the presumption of unfitness by showing that she had
“changed in significant and material ways.” Id. at 446-47. She demonstrated “significant
progress” in parenting skills through therapy and parenting classes; she was actively
engaged in supervised visits with her children; she created a more stable living
environment; she married a man with a full-time job; she had a car, and she created a
greater support network. Id. at 446. She was actively supported by her instructors, foster
parents, adoptive parents, and her relatives. Id.
In In re Welfare of Child of J.L.L., 801 N.W.2d 405 (Minn. App. 2011), review
denied (Minn. July 28, 2011), the parent successfully rebutted the presumption by
showing two years of sobriety, attendance at AA meetings, a commitment to avoid
“unhealthy relationships that might adversely affect her sobriety or [the child’s] safety,”
termination of her unhealthy relationships, active participation in services from the
county, employment, stable living environment, therapy, supervised visitation, and
compliance with probation. J.L.L., 801 N.W.2d at 408, 412.
In contrast, the parents in In re Welfare of Child of D.L.D., 771 N.W.2d 538
(Minn. App. 2009), engaged in the same services they had used before the prior
termination, and delayed in engaging in others. D.L.D., 771 N.W.2d at 544. Both
parents engaged in criminal activities after the birth of the subsequent child. Id. at 545.
The court found that mother had mental-health issues that impacted her children and
changed therapists to “present herself in a better light.” Id.
10
Appellant falls somewhere in the middle of these cases. She participated in
therapy and empowerment classes but did not attend parenting classes. She had
supervised visitation with E.J., but it varied from one to four times per week. Until 2019,
her probation conditions prohibit her from having unsupervised contact with E.J. She
maintains that she severed her relationship with L.W.J., but evidence introduced at trial
suggested that she was not honest about this. She continued to work at the casino where
L.W.J. was a security guard. The district court’s biggest concern was that appellant lied
to protect her boyfriend after her older child was injured and was not honest about the
status of her relationship with L.W.J. The first termination occurred because she did not
protect the child; the district court found that “[a]lthough [appellant] has made progress
in several areas of her life that were of concern, she has not rebutted the statutory
presumption that she is palpably unfit to be a party to the parent and child relationship.”
The court’s reasoning is based on its view of appellant’s credibility. This court
defers to the district court’s chance to observe witnesses and assess their credibility. In re
Welfare of Children of D.F., 752 N.W.2d 88, 94 (Minn. App. 2008). The district court
found that “[appellant] was not candid regarding the extent of her contact with [L.W.J.].
This lack of candor is troubling in light of the basis for the prior termination, that is, her
covering for a boyfriend who had severely abused [her son].” Thus, the district court was
alarmed not only by appellant’s failure to protect her son but also by her willingness to
protect her abusive boyfriend. Appellant’s changing stories about her relationship with
L.W.J. suggested to the court that this was still an issue. The court concluded appellant
failed to rebut the presumption that she was palpably unfit to parent the child. The
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district court’s findings are supported by record evidence. We conclude that the district
court did not abuse its discretion by terminating appellant’s parental rights on grounds of
palpable unfitness.
III.
Appellant argues that there is not clea r and convincing evidence to support the
district court’s conclusion that termination of her parental rights is in E.J.’s best interests.
A district court must make findings and explain its rationale for its best-interests
determination. In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003). Findings must
be supported by clear and convincing evidence. Id. at 625. We defer to the district
court’s credibility assessments, particularly in its best-interests analysis, because “[s]ome
statutory criteria will weigh more in one case and less in another.” Id. (quotation
omitted). “Whether termination of parental rights is in a child’s best interests is a
decision that rests within the district court’s discretion.” D.F., 752 N.W.2d at 95.
The best interests of the child are the paramount consideration in a termination
matter. Minn. Stat. § 260C.301, subd. 7 (2016). The district court must consider the
child’s interest in preserving the parent-child relationship, the parent’s interest in
preserving the parent-child relationship, and any other competing interests factors. Minn.
R. Juv. Prot. P. 39.05, subd. 3(3). “Competing interests include such things as a stable
environment, health considerations, and the child’s preferences.” In re Welfare of
Children of K.S.F., 823 N.W.2d 656, 668 (Minn. App. 2012) (quotation omitted). When
parental rights to another child have been terminated, the state has an interest in
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protecting a child from parents who “have been adjudicated to pose a continuing threat to
the safety of their children.” P.T., 657 N.W.2d at 588-89.
The district court’s best-interest findi ngs can be summarized as follows: (1) the
court acknowledged that there is a bond between appellant and the child, but because the
child would be adopted by appellant’s mother, “[t]here will be an ongoing relationship
between [appellant and E.J.] whether [appellant’s] parental rights are terminated or not”;
(2) the social worker, the adoption worker, the GAL, and the expert social worker all
testified that adoption was preferable to transfer of physical and legal custody because
permanency is better for the child; (3) the child is in a safe place and is well-cared for;
(4) because of the terms of appellant’s probation, the child may not reside with her; the
child will have lived with B.K. for almost three years before appellant is discharged from
probation; (5) the district court had concerns about whether appellant could “manage and
raise a child on her own” and how she would handle a crisis or emergency; (6) the district
court considered appellant not to be a credible witness; and (7) the district court was
specifically concerned because appellant sought to protect her abusive former boyfriend
and was dishonest about her relationship with E.J.’s father. Based on these findings, the
district court briefly concluded that “[i]t is in the best interests of E.J. that the parental
rights of [appellant] be terminated so that she can be adopted.”
If the district court’s findings are suppor ted by clear and convincing evidence, this
court must affirm even if it views the evidence differently. See In re Welfare of Children
of S.E.P., 744 N.W.2d 381, 387 (Minn. 2008) (admonishing this court to avoid
“overstep[ping] the bounds of its role as a reviewing court” by making factual findings).
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There is clear and convincing evidence to support the district court’s findings regarding
the child’s best interests.
Affirmed.