In the Matter of the Welfare of the Child of: J. M. L., a/k/a J. M. W. and R. A. L., 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This opinion will be unpublished and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
A16-1775

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

Filed April 17, 2017
Affirmed in part and remanded
Hooten, Judge

Koochiching County District Court
File No. 36-JV-16-80

Robert C. Friday, Legal Aid Service of NE Minnesota, Virgin ia, Minnesota (for appellant
J.M.L.)

Jeffrey S. Naglosky, Koochiching County Attorney, Molly J. French, Assistant County
Attorney, International Falls, Minnesota (for respondent county)

Thomas J. Nolan, Jr., Minneapolis, Minnesota (for respondent GAL)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
On appeal from the termination of her parental rights, appellant mother argues that
the district court (1) erroneously concluded that she failed to produce sufficient evidence
to rebut the presumption of unfitness arising from a prior termination of her parental rights;
(2) abused its discretion by determining that respondent county produced clear and
convincing evidence that she is a palpably unfit parent ; (3) erred by making a negative
2
inference based on her failure to call her therapist to testify; and (4) failed to explain its
best interests finding . We conclude that the district court erroneously concluded that
appellant failed to produce sufficient evidence to rebut the presumption. However, because
the district court did not abuse its discretion by concluding that the county established by
clear and convincing evidence that appellant is a palpably unfit parent and because any
error in making an adverse inference against appellant was harmless, we affirm in part.
Because the district court did not sufficiently explain its best interests finding, we remand
to the district court.
FACTS
Appellant J.M.L. and R. A.L. are the parents of K.L., born in 2012. In February
2016, respondent Koochiching County filed a petition seeking to te rminate J.M.L. and
R.A.L.’s parental rights. Only J.M.L.’s parental rights are at issue in this appeal. 1 The
following evidence was presented at the termination trial, which was held in August 2016.
J.M.L. stipulated at trial that her parental rights to three of her other children were
involuntarily terminated by default in September 2006. In that case, J.M.L.’s parental
rights were terminated because J.M.L. was chemically dependent, educationally neglected
her children, was unable to provide stable and safe housing, failed to maintain any form of
contact with her children when they were placed outside of the home, and failed to
cooperate with the service s offered by the county. Moreover, there was a history of
domestic violence between J.M.L. and R. W., her husband at that time. Despite a court

1 On the first day of trial, R.A.L. voluntarily terminated his parental rights, and he has not
appealed from the termination.
3
order prohibiting R.W. from having contact with J.M.L. or her children, J.M.L. allowed
R.W. in her home and permitted him to have access to her children, providing another
reason for the termination.
Sometime in the summer of 20 06, J.M.L. met R. A.L. In November 2006, J.M.L.
moved to Koochiching County in order to continue her relationship with R.A.L. In October
2010, she married R.A.L, and K.L. was born to the couple in January 2012. While J.M.L.
was pregnant with K.L., R.A.L. committed and was convicted of the offense of solicitation
over the internet of a minor in the state of Virginia.2
Tammie Treat, a social worker with the county, began working with J.M.L. in
January 2013 after receiving notice of the prior termination and learning of R. A.L.’s
incarceration. The county filed a petition alleging that K.L. was a child in need of
protection or services (CHIPS) due to J.M.L.’s prior termination and R.A.L.’s conviction
of an offense that required his registration as a sex offende r. J.M.L. admitted to the
allegations contained in the CHIPS petition and began working on a case plan.
Initially, J.M.L. was fully compliant with all aspects of the case plan. J.M.L.
provided random urine samples for urina lysis testing and never submitted a sample that
was p ositive for drugs or alcohol. The district court determined that J.M.L. “actively

2 The conviction arose from the following facts. Through the internet, R. A.L. was in
contact at least three times with an individual who claimed to be 13 years old. At one point,
R.A.L. masturbated on camera in front of that individual. A police officer was posing as a
child as part of a sting operation, and R.L. was arrested and convicted of solicitation of a
minor.
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demonstrated that her chemical dependency issues . . . improved in [a] significant and
material way since the prior [termination].”
R.A.L. was released from prison several months after the county began providing
services to J.M.L. In order to comply with probation and the case plan in the CHIPS matter,
R.A.L. was required to complete sex offender treatment. R. A.L. began treatment with
Upper Mississippi Mental Health Center in April 2013. When R. A.L. returned to the
marital home, the county created a safety plan for kee ping K.L. safe. The plan contained
rules regarding R.A.L.’s interactions with K.L. and provided that J .M.L. was to supervise
R.A.L.’s interactions with K.L.
In January 2014, J.M.L. was dismissed from the CHIPS case because she was in full
compliance with the case plan. Treat testified that she considered the marital home to be
safe, secure, clean, and organized. She also stated that she had no educational concerns
regarding K.L. However, the CHIPS case remained open regarding R.A.L. because he was
on probation and had not completed sex offender treatment.
As a part of his treatment, R. A.L. was requi red to undergo polygraph testing
regarding his sexual history. R.A.L. failed the first polygraph he took in July 2014 because
he withheld information regarding his sexual history. After the polygraph, R.A.L. admitted
to masturbating while watching children’s programming and sniffing the underwear of a
minor family member, as well as other deviant sexual behavior.
R.A.L. also provided disclosures of his sexual history, including all of his charged
or uncharged sexual offenses, as a part of his treatment. R.A.L.’s disclosures included the
following history. R. A.L. forced a two-year-old female child to perform oral sex on him
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and ejaculated in her mouth and on her face. When J.M.L. was pregnant with K.L., R.A.L.
chatted with another person over the internet who advised R. A.L. to raise K.L. as a sex
slave, and R.A.L. indicated that he might do so. R.A.L. was engaging in a sexually explicit
internet chat with another adult when the person’s nine -year-old niece entered the room
and the “innocence” in the child’s voice caused R. A.L. to ejaculate. R. A.L. used K.L.’s
teddy bear bottle holder as a masturbation aid. R.A.L. also disclosed that he had “flash
thoughts” of oral sex with K.L.
In early June 2015, giv en R. A.L.’s disclosures and his relatively poor treatment
progress, R.A.L.’s probation agent ordered R.A.L. to leave the marital home. R.A.L. was
diagnosed as a pedophile in early July 2015.
After learning of R. A.L.’s disclosures and his diagnosis, t he county became
concerned about K.L.’s safety. When Treat discussed the disclosures with J.M.L., J.M.L.
indicated that she had known of the information in th e disclosures for a period of time.
J.M.L., however, had not informed the county of her knowledg e of R. A.L.’s sexual
behaviors and urges involving children. After the county confronted J.M.L. with R.A.L.’s
disclosures, she became “very defensive” of R. A.L. and of her decision to stay in a
relationship with him. J.M.L. was angry and repeatedly state d that she had processed the
information, had forgiven R.A.L., and had moved on. Up to the time of trial , J.M.L. did
not believe R. A.L. had solicited a minor with respect to the offense for which he was
convicted, suggesting that any solicitation by R.A.L. was directed to a police officer rather
than a minor.
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The director of Upper Mississippi testified at trial that R.A.L. is a pedophile who is
sexually attracted to three categories of females: adult, adolescent, and young children. 3
The director testified that R.A.L. would have to be supervised by an individual trained to
supervise sex offenders in order for hi m to have access to children. The district court
credited this testimony. Although Upper Mississippi trains spouses or other responsible
adults to be visitation supervisors for sex offenders, it denied J.M.L.’s request to be trained
as a supervisor due to her denial of R. A.L’s sexual issues and her unwillingness to work
with the professionals at Upper Mississippi.
From the time that R.A.L. was removed from the marital home in June 2015 to late
April 2016, J.M.L. failed to cooperate with the county. Sometime in August or September
2015, J.M.L. was added to the CHIPS petition . When the county asked J.M.L. to go to
individual therapy after R.A.L.’s diagnosis, J.M.L. initially “[dragged] her feet” and later
refused to sign releases allowing the county to access her therapy records or offered
releases that both the county and the guardian ad litem (GAL) found to be inadequate.
J.M.L. finally sign ed a release to her t herapy records in April 2016. Upper Mississippi
wanted J.M.L. to be part of R.A.L.’s therapy, but J.M.L. was not cooperative. J.M.L. also
ceased communicating with the county. K.L. was removed from the marital home on June
22, 2016.
The county and a district court judge who did not preside over the termination trial
warned J.M.L. to separate herself from R. A.L. in late 2015 and early 2016. J.M.L. began

3 The director explained that young children for the purposes of the instrument used to
measure an individual’s sexual template are children between the ages of 6 and 13.
7
the process of dissolving her marriage in March 2016, but did not file a dissolution action
until late June 2016, a week after K.L. was removed from her care. At trial, J.M.L. testified
that “I have told [R. A.L.] from day one I did not want to get a divorce, but now I don’t
have a choice.”
J.M.L. and R.A.L. have engaged in consensual sexual activities together with other
adults throughout their relationship. As part of R. A.L.’s sex offender treatment, he was
told that he needed to remain monogamous in order to avoid triggering any of his deviant
sexual behaviors. However, J.M.L. and R.A.L. believed that they could continue to freely
engage in sexual activities with other consenting adults despite his conviction and
pedophilia diagnosis.
After the county filed the termination petition in February 2016, J.M.L. continued
to socialize and interact with R.A.L. J.M.L. testified that she had most recently had sexual
contact with R.A.L. in May 2016. J.M.L. claimed that on the day that K.L. was removed
from her care, she spent the night with R.A.L. in order to derive strength and comfort from
him. Later, after K.L. was removed from her care, J.M.L. was seen in the community
socializing with R.A.L. on at least two known occasions. Additionally, less than two weeks
before the termination trial began, J.M.L. went four-wheeling with R.A.L. At the time of
trial, J.M.L. and R. A.L. were having face -to-face contact once or twice a week. Treat
testified that J.M.L. had expressed a desire to move out of state and discussed the difficulty
of R.A.L. getting his probation transferred to another state.
After K.L. was removed from J.M.L.’s car e, the county arranged to have J.M.L.
placed on a waiting list for a family services visitation facility near K.L.’s foster ho me.
8
About a week before the termination trial began, the facility became available for J.M.L.’s
visitation for two hours each Sunday and Monday, but J.M.L. rejected th ose visitation
opportunities.
The GAL testified that she believes that J.M.L. is not able to ensure the safety of
K.L. because of her continued inability to understand and accept the dangers posed by her
relationship with R. A.L. When questioned by the county attorney, the GAL agreed t hat
J.M.L. has a history of choosing dangerous men over the welfare of her children and that
her judgment has not changed since the prior termination . The GAL from the prior
termination testified that J.M.L. failed to prioritize her children and exhibited a self -
centered mentality. The district court credited Treat’s testimony that J.M.L. has made her
relationship with R.A.L. her priority over K.L.
After considering this evidence, the district court determined that J.M.L. had not
met her burden of producing evidence to rebut the presumption that she was palpably unfit
to be a parent based on the prior termination . The district court also concluded that the
county had presented clear and convincing evidence that J.M.L. is palpably unfit to be a
parent and that it was in K.L.’s best interests for J.M.L.’s parental rights to be terminated.
This appeal followed.
D E C I S I O N
“[A]n involuntary termination of parental rights is proper only when at least one
statutory ground for termination is sup ported by clear and convincing evidence and the
termination is in the child’s best interest.” In re Welfare of Child of R.D.L. , 853 N.W.2d
127, 137 (Minn. 2014). The statutory grounds for termination include:
9
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 parent and child relationship either of which are
determined by the court to be of a duration or n ature that
renders the parent unable, for the reasonably foreseeable
future, to care appropriate ly for the ongoing physical, mental,
or emotional needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4) (2016).

I. The district court erred in determining that J.M.L. failed to produce
sufficient evidence to rebut the presumption of unfitness.

The county argued, and the district court concluded, that J.M.L. was presumptively
an unfit parent due to her prior termination and that she had failed to produce su fficient
evidence to rebut that presumption. We disagree with the district court’s determination
that J.M.L. failed to produce sufficient evidence to rebut the presumption that she is a
palpably unfit parent.
“It is presumed that a parent is palpably unfi t to be a party to the parent and child
relationship upon a showing that the parent’s parental rights to one or more other children
were involuntarily terminated.” Minn. Stat. § 260C.301, subd. 1(b)(4). “[T]he
presumption is easily rebuttable.” R.D.L., 853 N.W.2d at 137. “The statutory presumption
does not shift to a parent the burden of proof in the sense of the risk of nonpersuasion,” but
rather “shifts to a parent a burden of production.” In re Welfare of Child of J.W. , 807
N.W.2d 441, 445 (Minn. Ap p. 2011) (alteration omitted) (quotation omitted) , review
denied (Minn. Jan. 6, 2012).
To satisfy this burden, “a parent must introduce evidence that would justify a finding
of fact that he or she is not palpably unfit.” Id. (quotation omitted). In determining whether
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a parent’s evidence would support a finding that he or she is not palpably unfit, a court
evaluates the evidence presented by the parent without considering any evidence to the
contrary. See id. at 443–47 (concluding evidence presente d by parent “would justify a
finding contrary to the assumed fact” that parent was palpably unfit and concluding that
parent rebutted presumption of palpable unfitness, even though county presented contrary
evidence and cross-examined parent’s witnesses “in ways that tended to limit the effect of
their testimony” (quotation omitted) ). If the parent produces such evidence, the
presumption has “no further role” in the proceedings, and the county then has the burden
of persuasion to prove by clear and convincing evidence “that specific conditions existing
at the time of the hearing” make the parent palpably unfit. Id. at 447 (quotation omitted).
We review de novo a district court’s conclusion regarding whether a parent’s evidence
could justify a finding that he or she is not palpably unfit. Id. at 446.
J.M.L. introduced extensive evidence that she had remedied many of the issues
underlying the prior termination, as she demonstrated that she had successfully addressed
her chemical dependency issues, appropria tely met K.L.’s educational needs, complied
with the county’s requirements regarding supervision of R. A.L.’s contact with K.L., and
provided a suitable and clean home for K.L. We conclude that J.M.L. produced evidence
that could justify a finding that she is not a palpably unfit parent and therefore that she
produced sufficient evidence to rebut the “easily rebuttable” presumption that she is unfit.
J.M.L. argues that the district court “rested its decision on the statutory presumption
of parental unfitness and the case must be reversed” if we conclude that the district court
erred in determining that J.M.L. failed to produce sufficient evidence to rebut the
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presumption. The district court, however, explicitly found that the county had produced
clear and convincing evidence that J.M.L. was in fact palpably unfit to parent the child,
made numerous findings related to this conclusion, and analyzed those findings in its
memorandum. Therefore, we next must determine whether the district court properly
concluded that J.M.L. is a palpably unfit parent, irrespective of the presumption.
II. The district court did not abuse its discretion by determining that the
county presented clear and convincing evidence that J.M.L. was palpably
unfit to be a parent.

J.M.L. argues that the district court abused its discretion by concluding that the
county presented clear and convincing evidence that J.M.L. was palpably unfit to be a party
to the parent and child relationship. We disagree.
The decision of whether to terminate parental rights is discretionary with the district
court. R.D.L., 853 N.W.2d at 136. “[O]n appeal from a district court’s decision to
terminate parental rights, we will review the district court’s findings of the underlying or
basic facts for clear error . . . .” In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901
(Minn. App. 2011), review denied (Minn. Jan. 6, 2012). However, “ we review its
determination of whether a particular statutory basis for involuntarily terminating parental
rights is present for an abuse of discretion.” Id.
A parent’s unfitness is based on either showing “a consistent pattern of specific
conduct before the child” or “specific conditions directly relating to the parent and child
relationship.” Minn. Stat. § 260C.301, subd. 1(b)(4). The pattern or condition must be “of
a duration or nature that renders the parent unable, for the reasonably foreseeable future,
12
to care appropriately for the ongoing physical, mental , or emotional needs of the child.”
Id.
The district court made the following findings that are relevant to our determination
of whether the district court abused its discretion by concluding that the county presented
clear and convincing evidence that J.M.L. was palpably unfit to be a parent. J.M.L. learned
of R.A.L.’s disclosures and sexual urges involving children, but failed to inform the county
of the information until the county confronted her with the information. When R.A.L. was
removed from the marital home, J.M.L. was angry, defended him, an d minimized the risk
of R.A.L. having access to K.L. Up to the time of trial, J.M.L. minimized R.A.L.’s conduct
in soliciting a minor over the internet by rationalizing that, because he was caught in a sting
operation, he only solicited a police officer, not a minor. After R.A.L. was removed from
the marital home, J.M.L. failed to cooperate with the county and refused for a period of
time to sign a release that would allow the county to access her therapy records. J.M.L.
lacks impulse control, blames others for her situation, and prioritizes her own needs over
those of K.L.
Although J.M.L. was warned to separate herself from R. A.L., she continued to
socialize with him and only filed a dissolution action after K.L . was removed from her
home. J.M.L. testified that she brought up the difficulty of transferring R.A.L.’s probation
to show that he would not be joining J.M.L. in another state, but the district court was not
persuaded and credited Treat’s testimony that J.M.L.’s discussion of the difficulty of
transferring probation “belies any real separation of [J.M.L. and R. A.L.]” J.M.L. was
aware of R. A.L.’s condition “long before she expressed a willingnes s to keep him away
13
from K.L.” Although J.M.L. was warned that R. A.L. needed to maintain a monogam ous
relationship in order to avoid aggravating R.A.L.’s deviant sexual behaviors, she believed
it would be safe to continue to engage in sexual activities involving R. A.L. and other
consenting adults as long as K.L. was not in the vicinity. J.M.L. relied on R. A.L. for
comfort when K.L. was removed from her care. The district court was unconvinced that
J.M.L.’s petition for dissolution was “anything but pre -textual in nature.” Though J.M.L.
was offered in -person visitation with K.L. shortly before trial, she rejected the visitation
for personal reasons.
These findings of the district court indicate that , although J.M.L.’s parenting skills
have improved significantly in several respects, her impaired judgment and misplaced
priorities remain a significant concern regarding her ability to ensure K.L.’s safety.
J.M.L.’s actions demonstrate that she lacks insight into R.A.L.’s pedophilia and the danger
that he poses to K.L. Any efforts of J.M.L. to separate herself from R.A.L. are superficial
and pretextual, as she continued to prioritize her relationship with him, even after learning
that R.A.L. had abused a two year old and had had sexual thoughts of K.L. Moreover, she
failed to cooperate with the county after the county took actions that impeded her
relationship with R.A.L. J.M.L. continues to have many of the same parenting deficits that
led to her prior termination, namely, poor impulse control, impaired judgment, and blaming
others for her situation, although she no longer has substance abuse issues. J.M.L.’s
impaired insight and judgment render her unable to ensure the physical and emotional
health of K.L. Because the county demonstrated that J.M.L. does not understand the danger
of R.A.L.’s pedophilia and cannot remain apart from R. A.L. for any peri od of time, we
14
conclude that the district court did not abuse its discretion in determining that J.M.L. was
palpably unfit to be a party to the parent-child relationship.
III. Any error in applying an adverse inference to the testimony of J.M.L. for
failing to call her therapist as a witness was harmless.

J.M.L. argues that the district court erred in applying an adverse inference to her
testimony for failing to call her therapist as a witness. The district court noted that J.M.L.
testified about her therapy and the progress that she is making in moving through the stages
of grief and toward acceptance of R.A.L.’s pedophilia. However, because J.M.L. failed to
call her therapist as a witness to testify, the district court drew an adverse inference against
J.M.L. regarding her progress in treatment.
Regardless of whether the adverse inference was erroneous, we conclude that any
error in making the adverse inference was harmless. See In re Welfare of Children of D.F.,
752 N.W.2d 88, 98 (Minn. App. 2008) (ignoring harmless error). The adverse inference
merely bolstered the district court’s determination that J.M.L.’s testimony regarding her
progress in accepting R. A.L.’s diagnosis was not credible , and therefore any error in its
admission was harmless. See In re Welfare of Child of J.L.L., 801 N.W.2d 405, 413 (Minn.
App. 2011) (“We defer to the district court’s determinations of witness credibility . . . .”),
review denied (Minn. July 28, 2011).
IV. The district court failed to explain its best interests finding.
Finally, J.M.L. argues that the district court erred by failing to explain its best
interests finding and that the case must be remanded. We agree.
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In a termination proceeding, the “paramount consideration” is the best interests of
the child. In re Welfare of Child of D.L.D. , 771 N.W.2d 538, 545 (Minn. App. 2009).
“Considering a child’s best interests is particularly important in a [termination] proceeding
because a child’s best interests may preclude terminating parental rights even when a
statutory basis for termination exists.” Id. (quotation omitted). In determining whether
termination is in a child’s best interests, a court must weigh the following factors: “t he
child’s interest in maintaining the parent -child relationship, the parents’ interest in
maintaining the parent-child relationship, and any competing interest of the child.” In re
Welfare of the Children of M.A.H. , 839 N.W.2d 730, 744 (Minn. App. 2013); see also
Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3). The district court must “explain why
termination is in the best interests of the child.” D.L.D., 771 N.W.2d at 545.
The district court made an explicit finding that termination is in K.L.’s best interests.
However, the district court’s order does not contain any specific analysis relating to the
reasoning underlying the best interests finding. 4 The county notes that the district court
stated at the beginning of its findings of fact that “[t]hese proceedings are to support the
best interests of the child, [K.L.],” and argues that this language meant that the district court
intended for all of its findings to support its best interests finding.
This argument essentially would require this court to infer a best interests analysis
from the existing findings, which th is court has declined to do on a number of occasions.

4 While the district court’s findings include a number of reasons why it is unsafe for K.L.
to be under J.M.L.’s care, there are no findings regarding J.M.L. ’s or K.L.’s interest in
maintaining the parent-child relationship.
16
See id. at 545–46 (declining to i nfer findings regarding child’s best interests, stating that
“an appellate cou rt’s combing through the record to determine best interests is
inappropriate because it involves credibility determinations” (quotation omitted)); In re
Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003) (holding that district court “must
consider a child’s bes t interests and explain its rationale in its findings and conclusions”
because when findings fail to address best interests, “they are inadequate to facilitate
effective appellate review, to provide insight into which facts or opinions were most
persuasive of the ultimate decision, or to demonstrate the court’s comprehensive
consideration of the statutory criteria” (quotation omitted)). Therefore, we remand for the
district court to explain its best interests finding.5
Affirmed in part and remanded.

5 See D.L.D., 771 N.W.2d at 547 (affirming statutory basis for termination but remanding
for findings regarding the child’s best interests.)