A17-0231

This opinion will be unpublished and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
A17-0230
A17-0231

In the Matter of the Welfare of the Children of:
F.I.S., D.S.H., Sr., T.C.H., and A.L.F.,
Parents (A17-0230),

and

In the Matter of the Welfare of the Children of: F.I.S. and D.S.H., Sr.,
Parents (A17-0231).

Filed August 28, 2017
Affirmed
Reyes, Judge

Pope County District Court
File Nos. 61-JV-16-379; 61-JV-16-380; 61-JV-16-381

Krystal M. Lynne, Stermer and Sellner, Mondevideo, Minnesota (for F.I.S.)

John E. Mack, Mack & Daby, New London, Minnesota (for D.S.H.)

Jan Nordmeyer, Nelson, Kuhn & Nordmeyer, Glenwood, Minnesota (for T.C.H.)

Douglas Hegg, Hegg Law Office, Alexandria, Minnesota (for A.L.F.)

Neil Nelson, Pope County A ttorney, Troy E. Nelson, A ssistant County Attorney,
Glenwood, Minnesota (for respondent Pope County)

Geri Krueger, Glenwood, Minnesota (guardian ad litem)

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Considered and decided by Reyes, Presiding Judge; Re illy, Judge; and Stauber,
Judge.*
U N P U B L I S H E D O P I N I O N
REYES, Judge
In these consolidated appeals, appellant -mother and appellant-father challenge the
district court’s termination of parental rights (TPR). Appellants argue that the district court
abused its discretion in determining that (1) the county made reasonable efforts to
rehabilitate the parents and re unite the family; (2) a statut ory basis for TPR exists; and
(3) TPR was in the best intere sts of the children. Appellant -mother also argues that she
received ineffective assistance of counsel. We affirm.
FACTS
Appellant-mother F.I.S. is the biological parent of three children: D.H. (born 2008),
D.F. (born 2012), and J.S. (born 2015). Appellant-father D.S.H. is the biological parent of
D.H. The children resided with mother.
In November 2015, after receiving a re port concerning mother’s treatment of the
children, Amanda Schonhardt, a child-protection worker for Pope County Human Services
(the county), initiated services for mother, including an in-home worker, individual
therapy, a chemical-dependency assessment, and services for the children.
On March 18, 2016, the county remove d the children from mother’s home after
receiving reports alleging that mother left the children unattended, smoked marijuana in

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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front of the children, and threatened to harm and then physically harmed D.H. The children
were placed on a 72-hour hold, and the county commenced a child-in-need-of-protection-
or-services (CHIPS) proceeding. Removing the ch ildren from mother’s home started the
statutory six-month timeline to re unite the children with mother. See Minn. Stat.
§ 260C.204(a) (2016).
Prior to the CHIPS trial, mother agreed to admit that the ch ildren are CHIPS in
exchange for a 90-day stay of adjudication and a trial home visit. A case plan was entered
as part of the pre-trial order, requiring moth er to comply with ad ult mental-health case
management, individual therapy, a parental-c apacity assessment, and in-home services.
D.S.H. and D.F.’s father were also ordered to complete at least three random urinalysis
tests to show that their drug levels had decreased. The child ren were returned to mother
for a trial home visit on April 21.
Four days after the trial home visit began, the assigned guardian ad litem (GAL) and
a child-protection worker found the two youngest children home alone. The children were
again removed from mother’s home. The county placed D.H. and D.F. with a foster parent
and J.S. with his father.
On July 19, 2016, a dispositional review hearing was held in Pope County. After
the hearing, the district court adjudicated the children CHIPS. Temporary care and custody
of J.S. was awarded to his father. Custody and care of D.H. and D. F. remained with the
county.
On August 22, 2016, the county filed petitions for TPR against mother, D.S.H., and
D.F.’s father. The petitions alleged that it was in the best interests of the children that the
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custody of D.H. and D.F. be transferred to Pope County until a permanency home could be
established and that the custody of J.S. be transferred to his father.
The district court held a bench trial on the county’s petitions on November 10 and
December 12, 2016, and granted the TPR petitions. Mother and D.S.H. appealed, and their
appeals were consolidated.
D E C I S I O N
A natural parent is generally presumed to be fit and suitable to care for his or her
child. In re Child of P.T. , 657 N.W.2d 577, 583 (Minn. App. 2003) (quotation omitted),
review denied (Minn. Apr. 15, 2003). We also presume that it is in a child’s best interests
to remain in the natural parent’s care. Id. Nevertheless, “parental rights are not absolute”
and will not be “enforced to the detriment of the child’s welfare and happiness.” Id.
This court will affirm a district court’ s TPR where there is clear and convincing
evidence that (1) the co unty made reasonable efforts to re unite the family; (2) a statutory
ground for termination exists; and (3) termination is in the children’s best interests. In re
Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). We review “whether
the district court’s findings address the stat utory criteria and whether the district court’s
findings are supported by substantial evid ence and are not clearly erroneous.” Id. “ A
finding is clearly erroneous if it is manifestly contrary to the weight of the evidence or not
reasonably supported by the evidence as a whole.” In re Welfare of Children of T.R., 750
N.W.2d 656, 660 (Minn. 2008 ) (quotation omitted). We review the district court’s
determinations on whether a particular stat utory basis for TPR is present and whether
termination is in the best interests of a child for an abuse of discretion. In re Welfare of
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Children of J.R.B., 805 N.W.2d 895, 901, 905 (Minn. App. 2011), review denied (Minn.
Jan. 6, 2012).
I. The district court did not abuse its disc retion in determining that the county
made reasonable efforts to rehabilitate the parents and reunite them with their
children.
In a TPR proceeding, the district court must determine whether the county has
provided reasonable efforts to rehabilitate the parent and reunite the child and parent. T.R.,
750 N.W.2d at 664. “Reasonable efforts at rehabilitation are services that go beyond mere
matters of form so as to incl ude real, genuine assistance.” In re Welfare of Children of
S.W., 727 N.W.2d 144, 150 (Minn. App. 2007) (quotation omitted), review denied (Minn.
Mar. 28, 2007). For efforts to be reasonable, the services the coun ty offers must be
“(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the
child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and
timely; and (6) realistic under the circumstan ces.” Minn. Stat. § 260.012(h) (2016). The
district court must make “specific findings” that the county made reasonable efforts. Minn.
Stat. § 260C.301, subd. 8 (2016).
A. Mother
Mother argues that the county did not make reasona ble efforts because (1) the
parental-capacity assessment and services it recommended were delayed, which impeded
mother’s progress; (2) the services provided were not culturally appropriate; and (3) some
services were used only to demonstrate mo ther’s failures as a parent. We are not
persuaded.
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In an extensive and detailed order, the dist rict court determined that the county made
reasonable efforts to rehabilitate mother and no other efforts were practical or likely to be
effective at remedying the underlying problems. The district found that the efforts the
county made to reunite mother and her childr en included inpatient treatment, an in-home
worker, “individual therapy, mental hea lth case management, parental capacity
assessment, extensive visitation, and a failed tr ial home visit.” The co unty also provided
services for the children, including placements and ment al and physical health
appointments. In addition, the district court found that “[t] he services that were Court-
ordered and provided were culturally, linguistically, and clinically appropriate.” A careful
review of the record supports the district court’s determination.
Moreover, the timing of the assessment’ s results and recommendations did not
render the county’s efforts unreasonable. An independent mental-health practitioner
completed the court-ordered parental-capacity assessment with mother on two days in
April and May 2016. The parties received the results of the parental-capacity assessment
at about the half-way point of the six-month reunification timeline. In addition, the in-
home service ended to allow mother time to fo cus on her mental hea lth, yet mother only
attended two of the suggested dialectical-behavioral-therapy sessions because she was “too
distressed” to continue. Further, there is no evidence that the serv ices provided were
culturally inappropriate or intended to demonstrate mother’s parental failures.
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B. D.S.H.
D.S.H. argues that the co unty did not make reasonable efforts to place D.H. in
D.S.H.’s day-to-day care, asserting that th e county provided only minimal services to
D.S.H. We disagree.
The district court determined that additional efforts at reunification of D.S.H. with
D.H. would not be fruitful within the six-month timeframe because D.S.H. rejected the idea
that he would benefit from a drug-treatment pr ogram. The district court found that the
efforts the county made include d “supervised visits, a home vi sit and drug testing.” The
district court also found that “[t]he services that were Court-orde red and provided were
culturally, linguistically, and clinically appropriate.”
Due to D.S.H.’s drug use a nd minimal contact with the county, the county did not
place D.H. with D.S.H. when the children were removed from mother’s home. The county
also required that D.S.H. take drug tests as a condition for visitation and show that his drug
levels were decreasing or negative. Th e county provided D. S.H. with mileage
reimbursement and gas cards to facilitate his compliance with the case plan. Further, the
county did not offer D.S.H. chemical-dependency treatment, and D.S.H. did not ask for it
because “[he] did not believe [he] needed extra services because [he] was clean.”
D.S.H.’s absence from April to July 2016, his inconsistent communication with the
county, and his denial that he needed tr eatment prevented the county from providing
additional services. Accordin gly, the district court did not abuse its discretion in
determining that the services the county provided D.S.H. constituted reasonable efforts to
put D.H. in D.S.H.’s day-to-day care. In addition, because the district court analyzed the
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efforts the county provided to D.S.H. under the standard for a custodial parent, we decline
D.S.H.’s invitation to address the difference between custodial and noncustodial parents in
the context of Minn. Stat. § 260C.301.
II. The district court did not abuse its dis cretion in determining that a statutory
basis for terminating mother’s and D.S.H.’s parental rights exists.
A statutory basis for TPR exists where the district court determines that “following
the child’s placement out of the home, reasonable efforts, under the direction of the court,
have failed to correct the conditions leadin g to the child’s placement.” Minn. Stat.
§ 260C.301, subd. 1(b)(5). A presumption that reasonable efforts have failed arises upon
a showing that (1) the child is under age eight and has resided outside the parental home
for six months unless the parent has maintained regular contact with the child and complied
with the out-of-home placem ent plan; (2) “the court has approved the out-of-home
placement plan;” (3) the conditions leading to the child’s out-of-home placement have not
been corrected; and (4) the social-services agency made reasonable efforts to rehabilitate
the parent and reunite the family. Id. Evidence in support of te rmination “must relate to
conditions that exist at the time of termination and it must appear that the conditions giving
rise to the termination will continue for a prolonged, indeterminate period.” In re Welfare
of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).
A. Mother
Mother argues that a statutory basis for TPR does not exist because the presumption
that reasonable efforts failed did not arise where mother maintain ed contact with her
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children and complied with the case plan. Even if we were to assume that the presumption
does not arise, we disagree.
The district court thoroughly analyzed the circumstances for each of the three
children under Minn. Stat. § 260C.301, subd. 1(b)(5), and determined that, although mother
maintained regular contact with her children and followed the case plan to the best of her
abilities, she made “little to no progress.” The district court noted that “[w]hile some of
the conditions leading to out-of-home placement have been partially addressed (such as
[m]other’s mental health), [m]other’s pr ogress has been minimal and an uncertain
timetable of when she could parent her children, if ever [exists].”
The district court’s findings and determin ation are supported by the record and
testimony. While the district court found that mother ha s complied with her therapy
sessions and recommendations for in-home services, the individual therapist testified that
mother’s progress was “slow and erratic,” and her mental health was deteriorating prior to
trial. The individual therapist also testified that mother’s improvement has been sporadic,
and did not believe that mother has benefite d from or applied the services provided.
Similarly, the GAL testified that, until a co uple weeks before tr ial, mother has not
progressed in her mental health despite participating in the services offered. Further, two
of mother’s sisters testified that mother was not yet prepared to care for her children.
“The critical issue is not wh ether the parent . . . compli ed with the case plan, but
rather whether the parent is presently able to assume the responsibilities of caring for the
child.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 89 (Minn. App. 2012). “[M]aking
only minimal progress supports the conclusion that the present conditions will continue for
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a prolonged, indeterminate period and that termination is proper.” In re Welfare of M.H.,
595 N.W.2d 223, 227 (Minn. App. 1999). The record shows that mother is not presently
able to parent her children. Thus, even if mother is correct in asserting that this record does
not support the district court’s ruling that it is presumed that reasonable efforts have failed
to correct the conditions lead ing to the children’s placement out of mother’s home, the
district court did not abuse its discretion in its separate determination that reasonable efforts
had, in fact, failed because the conditions that led to removal of the children from mother’s
home have not been corrected.
B. D.S.H.
D.S.H. argues that a statutory basis for TPR does not exist because the presumption
that reasonable efforts failed does not arise where (1) the district court could not determine
that the presumption arose under subdivision 1(b)(5)(i)-(iv) and (2) a statutory presumption
that reasonable efforts failed on the basis of his chemical dependency does not arise. Even
if we were to again assume without deciding that the presumption did not arise under either
analysis, we conclude that the record supports the district court’s determination.
Here, the county sought to place D.H. in the day-to-day care of D.S.H. The county
filed a case plan for D.S.H. wi th three goals: (1) maintain sobriety; (2) participate in
supervised visits with D.H.; and (3) communicate service progress and needs to the county.
The county did not include chemical-dependency treatment in the case plan, see Minn. Stat.
§ 260C.301, subd. 1(b)(5)(A)-(E), and D.S.H. did not request such treatment.
The district court found that D.S.H. fa iled to comply with the case plan’s drug-
testing requirement by either not attending or missing drug tests and continuing to test
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positive, failing to maintain contact with the county, and not attending all hearings related
to this matter. The district court noted that D.S.H.’s “lack of involvement” prevented the
county from offering him additional treatment options, and even if D.S.H. believes he
complied with the case plan, “he has proven he is not pr esently able to assume the
responsibilities of caring for the child.”
The record shows that D.S.H. was absent from the case between April and July
2016, and his communication with the county from August to October 2016 was sporadic.
D.S.H. was offered six visits with D.H., of wh ich D.S.H. attended four, was late to three,
cancelled one due to illness, and cancelled anot her due to weather. In addition, D.S.H.
missed four random color-wheel drug tests, and his visitation was suspended in September
2016 as a result. For the tests D.S.H. took, he tested positive for amphetamines as well as
marijuana, and his levels increased at times . In light of the record, D.S.H. did not
sufficiently comply w ith the case plan to correct th e conditions leading to D.H.’s
placement.
D.S.H. cites to In re Children of T.R. and contends that the district court abused its
discretion by relying on D.S.H.’s drug use in its analysis. In a footnote in T.R., the supreme
court questioned whether the parental rights of a noncustodial father could be terminated
under subdivision 1(b)(5) when his substance abuse did not lead to the removal of the child
from the mother’s home and when it did not a ppear that the father’s substance use was a
factor in placing the child in fost er care. 750 N.W.2d at 663 n.5. T.R. is distinguishable
because here D.S.H.’s drug use was a factor in D.H.’s foster-care placement. Accordingly,
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the district court did not abuse its discretio n in determining that a statutory basis for
terminating D.S.H.’s parental rights exists.
III. The district court did not abuse its disc retion in determining that TPR was in
the best interests of the children.
In considering the best interests of the child, the district court must analyze (1) the
child’s interest in maintaining the parent-child relationship; (2) the parent’s interest in
maintaining the parent-child relationship; and (3) any comp eting interests of the child,
“includ[ing] a stable environment, health considerations, and the child’s preferences.” In
re Welfare of Children of M.A.H. , 839 N.W.2d 730, 744 (Minn. App. 2013). “[T]he best
interests of the child are the paramount consid eration, and conflicts between the rights of
the child and rights of the parents are resolved in favor of the child.” J.R.B., 805 N.W.2d
at 901-02.
The district court determined that termin ation of mother’s and D.S.H.’s parental
rights was in the best interests of the children so they could “be raised in a stable and safe
environment.” The district court noted an d agreed with the GA L’s recommendation that
D.H. and D.F. stay together.
A. Mother
Mother argues that the TPR was not in th e best interests of her children based on
the connection between mother and her children, the connection between the siblings, and
mother’s ability to learn to be an effective parent. We disagree.
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With reference to the first f actor, the GAL testified that D.H. and D.F. desire to stay
in their current placement and want the case to end. Ho wever, at the conclusion of a
scheduled visit, D.F. resisted his foster father holding him and cried, “MaMa.”
As to the second factor, mother has expressed her desire to preserve the parent-child
relationship and to comply with the services the county offered in order to be reunited with
her children. At trial, mother testified that she was better th an she has been. In addition,
the individual therapist testified that she be lieves that mother lo ves her children and was
motivated to cooperate with the services the county provided in order to be reunited with
her children.
On the third factor, D.H. and D.F. have experienced six placements since March
2016. The GAL testified that D.H. and D. F. are progressing positively in their current
placement. The GAL further te stified that J.S.’s placemen t with his father has been
successful and J.S.’s father facilitates visits between J.S. and his brothers. The individual
therapist also testified that D.H. and D.F. ar e improving, noting positive behavioral
changes, an established routin e, and better sleep. Significa ntly, while several witnesses
testified that TPR is in the best interests of the children, no witness testified that mother is
able to parent now or will be able to do so in the near future.
Despite mother’s bond with her children and her desire to maintain the parent-child
relationship, the record supports the district court’s determination that the best-interest-of-
the-child factors weigh in favor of TPR. See In re Welfare of A.V., 593 N.W.2d 720, 722
(Minn. App. 1999) (TPR appropriate where father’s inability to adequately parent
outweighed bond between father and children), review denied (Minn. Aug. 25, 1999).
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Thus, the district court did not abuse its disc retion in determining that it was in the best
interests of the children to terminate mother’s parental rights.
B. D.S.H.
D.S.H. contends that the district court abused its discretion in determining that TPR
was in the best interests of D.H. because the district court did not make sufficient findings
or provide sufficient analysis to justify its c onclusions. He asserts that the district court
should have made specific best-interests findings as set out in Minn. Stat. § 518.17, subd.
1(a)(1)-(12), which relate to custody and pa renting time. We disagree and note that,
contrary to father’s assertion, the best-inter ests-of-the-child analysis in this context only
requires consideration of the factors set out above. See M.A.H., 839 N.W.2d at 744.
As to the first factor, the district court noted that D.H. was happy to see D.S.H.
during their first visit in August 2016. However, D.H. expressed interest in staying at his
current placement. With reference to the seco nd factor, D.S.H. has expressed his interest
in maintaining the parent-child relationship.
On the third factor, trial testimony estab lishes that D.H. is improving while in
placement. The individual therapist and the GAL testified that they believed that it was in
the best interest of D.H. to remain at his placement. The GAL also recommended that D.H.
and D.F. stay together. In addition, the record shows that D.S.H.’s drug use has not
consistently declined during the course of th is matter. In fact, D.S.H.’s drug levels
increased during the period between the two trial dates and days before a scheduled
visitation with D.H. Accordingly, the record supports that D.H.’s competing interests
outweigh any interests in preserving the parent-child relationship. Thus, the district court
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did not abuse its discretion in determining that termination of D.S.H.’s parental rights was
in D.H.’s best interests.
IV. Mother’s ineffective-assistance-of-counsel claim fails.
Mother argues that she rece ived ineffective assistance of counsel because her trial
attorney did not argue the constitutionality or proper application of Minn. Stat. § 260C.301,
subd. 1(b)(5), or the burden of proof. Mother also asserts that her trial attorney should have
called other therapists that treated mother. We are not persuaded.
Post-trial motions in a TPR proceeding “s hall be filed with the court and served
upon the parties within ten (10) days of the service of notice by the court administrator of
the filing of the court’s order.” Minn. R. Juv. Prot. P. 45, subd. 1. Mother did not file a
post-trial motion in the district court asserting her ineffective assistance of counsel claim.
Accordingly, mother’s claim is barred. See Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn.
1980).
Even if mother’s claim was not barred as untimely, her arguments fail. Mother has
“the right to effective assist ance of counsel in connection with a proceeding in juvenile
court.” Minn. Stat. § 260C.163, subd. 3(a) (2016). However, “[w] e will generally not
review an ineffective-assistance-of-counsel claim that is based on trial strategy.” Andersen
v. State, 830 N.W.2d 1, 10 (Minn. 2013). Here, mother’s arguments in support of her claim
of ineffective assistance of counsel are based on trial strategy, which we decline to review.
Affirmed.