In the Matter of the Welfare of the Children of: L. B. and L. B. (Deceased), 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This opinion will be unpublished and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
A17-0865

In the Matter of the Welfare of the Children of:
L. B. and L. B. (Deceased), Parents

Filed October 23, 2017
Affirmed
Hooten, Judge

Mower County District Court
File No. 50-JV-16-2454

Daniel T. Donnelly, Austin, Minnesota (for appellant L.B.)

Kristen Nelsen, Mower County Attorney, Aaron Jones, Assistant County Attorney, Austin,
Minnesota (for respondent county)

Alicia Schultheis, Austin, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, 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 record does not support the district court’s order because she substantially complied
with her case plan. We affirm.
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FACTS
Appellant L.B. is the mother of A.B., born in September 2007, and M.B., born in
August 2008.1 In May 2016, Mower County Health and Human Services (MCHHS) filed
a children in need of protection or services (CHIPS) petition alleging that A.B. and M.B.
were not attending school, that A.B. had reported that one of her mother’s male friends had
tried to sexually assault her, and that A.B. was fearful that people were trying to kill her
mother and M.B. L.B., admitting that she used methamphetamines and testing positive for
such use, also expressed great concern for herself and the children’ s safety and claimed
that unidentified people were tapping her phone lines and were trying to harm her and her
children.
On May 13, MCHHS removed the children from L.B.’s home and placed the
children in foster care. The district court adjudicated A.B. and M.B. as CHIPS, and in July
2016, L.B. signed an Out of Home Placement plan, which required her to (1) complete a
chemical dependency evaluation and follow through with treatment recommendations;
(2) complete a parenting assessment and follow throug h with any recommendations;
(3) visit and maintain contact with the children; (4) maintain a stable, clean living
environment; and (5) cooperate and maintain contact with MCHHS.
After determining that L.B. had not made sufficient progress on her case plan at a
six-month permanency progress revie w hearing on October 26, 2016 ,2 the district court

1 The children ’s father passed away in 2014 following complications from a 2012 car
accident.
2 The district court is required, no later than six months after a child is removed from their
parent’s home , to conduct a full hearing on the parent’s progress, the social se rvice
3
directed MCHHS to file a permanency petition. On November 22, 2016, MCHHS,
claiming that L.B. had not completed her case plan or cooperated with the provision of
social services , filed a termination of parental rights petition on two statutory grounds:
(1) under Minn. Stat. § 260C.301, subd. 1(b)(2) (2016), L.B. “substantially, continuously,
or repeatedly refused or neglected to comply with the duties imposed upon [her] by the
parent and child relationship,” and (2) under Minn. Stat. § 260C.301, subd. 1(b)(5) (2016),
“reasonable efforts, under the direction of the court, have failed to correct the conditions
leading to the child[ren ]’s placement” out of the home. The district court held a hearing
on the petition on March 21 and April 11, 2017 . In an order dated May 16, 2017, after
finding that clear and convincing evidence supported both grounds for termination and that
termination of L.B.’s parental rights was in the children’s best inte rests, the district court
ordered L.B.’s parental rights to A.B. and M.B. terminated. L.B. appeals.

agency’s reasonable efforts toward reunifying the parent and child, and its efforts toward
finding permanent placement if the child cannot return home with the parent. Minn. Stat.
§ 260C.204(a) (2016). If the parent “ has maintained contact with the child and is
complying with the court -ordered out-of-home placement plan ,” the court can return the
child to the parent’s home if the home is safe and return is in the child’s best interests. Id.
at (c)(1) (2016). Or, the court can allow the parent up to six more months to correct the
conditions which led to the child’s placement and to show they are ready and able to parent
the child. Id. But, if the parent “is not complying with the out-of-home placement plan or
is not maintaining regular contact with the child,” the court may order social services to
develop a plan for the permanent placement of the child outside of the parent’s home —
including considering the child’s relatives and foster parents as possible placement
options—and the court may order so cial services to file a termination of parental rights
petition. Id. at (c)(2), (d)(3) (2016).
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D E C I S I O N
L.B. argues that the record does not support the district court’s termination of her
parental rights because she has substantially complied with her case plan , maintained
sobriety, and established adequate housing, employment, and support. MCHHS responds
that the district court did not abuse its discretion in terminating L.B.’s parental rights .
MCHHS maintains that the record suppor ts by clear and convincing evidence the district
court’s determination that under Minn. Stat. § 260C.301, subd. 1(b)(2), L.B. substantially
refused or neglected to comply with the duties imposed upon her by the parent and child
relationship and that under Minn. Stat. § 260C.301, subd. 1(b)(5), reasonable efforts under
the direction of the district court have failed to correct the conditions leading to the
children’s placement.
Minnesota courts presume “that a natural parent is a fit and suitable person to be
entrusted with the care of a child,” and “custody of their children should not be taken from
them but for ‘grave and weighty reasons.’” Matter of Welfare of P.J.K., 369 N.W.2d 286,
290 (Minn. 1985) (citation omitted); In re Welfare of Children of J.R.B., 805 N.W.2d 895,
901 (Minn. App. 2011) (quotation omitted), review denied (Minn. Jan. 6, 2012). However,
“the law secures parents’ right to custody ‘ only so long as they shall promptly recognize
and discharge t heir corresponding obligations.’” P.J.K., 369 N.W.2d at 290 (citation
omitted). Thus, the district court has the power to involuntarily terminate parental rights
if it finds by clear and convincing evidence that at least one statutory basis for termination
exists, and if the court finds that termination is in the best interests of the child. Minn. Stat.
§ 260C.301, subds. 1(b), 7 (2016); In re Welfare of Child of R.D.L., 853 N.W.2d 127, 137
5
(Minn. 201 4). District courts are also required to “make specific findings: (1) that
reasonable efforts to finalize the permanency plan to reunify the child and the parent were
made . . . or (2) that reasonable efforts for reunification are not required.” Minn. Stat.
§ 260C.301, subd. 8 (2016). The “paramount consideration” in a termination of parental
rights case is “the best interests of the child.” Id., subd. 7.
Our review gives considerable deference to the district court because its
“opportunity to observe the parent and other witnesses who are called to testify is so crucial
to an accurate evaluati on of what is best for the child. ” Matter of Welfare of A.D. , 535
N.W.2d 643, 648 (Minn. 1995). As such, this court reviews a district court’s decision to
terminate parental rights in two steps. J.R.B., 805 N.W.2d at 900–01. We review “findings
of the underlying or basic facts for clear error,” but we review for an abuse of discretion
whether there is a statutory basis for termination, and whether termination is in the child’s
best interests. Id. at 901, 905. We will “affirm the district court’s termination of parental
rights when at least one statutory ground for termination is supported by clear and
convincing evidence and termination is in the best interests of the child, provided that the
county has made reasonable efforts to reunite the family.” In re Welfare of Children of
S.E.P., 744 N.W.2d 381, 385 (Minn. 2008) (citation omitted).
Statutory Grounds for Termination
Based upon our review of the record, we conclude that the district court did not
abuse its discretion by determining that there was clear and convincing evidence that L.B.
“substantially, continuously, or repeatedly refused or neglected to comply with the duties
imposed upon [her] by the parent and child relationship.” Minn. Stat. § 260C.301, subd.
6
1(b)(2). Those duties include, but are not limited to, “ providing the child with necessary
food, clothing, shelter, education, and other care and control necessary for the child ’s
physical, mental, or emotional health and development.” Id. A parent’s “[f]ailure to satisfy
requirements of a court-ordered case plan provides evidence of a parent’s noncompliance
with the duties and responsibilities” of being a parent. K.S.F., 823 N.W.2d at 666 (citation
omitted).
And, we conclude that the district court did not abuse its discretion by determining
that there was clear and convincing evidence that reasonable efforts under the direction of
the district court have failed to correct the conditions leading to the childre n’s placement.
See Minn. Stat. § 260C.301, subd. 1(b)(5). Reasonable efforts are presumed to have failed
if: (1) the child lived outside the parent’s home, by court order, for at least “12 months
within the preceding 22 months;” (2) “ the court has approved the out-of-home placement
plan;” (3) the conditions which lead to “placement have not been corrected;” and (4)
“reasonable efforts have been made by the social services agency to rehabilitate the parent
and reunite the family.” Id.
The record indicat es that in July 2016, L.B. obtained a chemical dependency
evaluation which recommended that she complete outpatient chemical dependency
treatment. Although she was scheduled to begin a chemical dependency treatment program
on August 29, she failed to attend and tested positive for methamphetamine on August 31.
L.B. did not enroll in a chemical dependency treatment program until after the October 26,
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2016 permanency progress review hearing,3 more than five months after the children were
removed from her custody and after the district court had already directed MCHHS to file
a permanency rights petition. While L.B. completed the inpatient treatment program, she
left the program to enter into a less intense program against the recommendation of her
therapists. L.B. also failed to comply with the recommendations of her chemical
dependency program that she complete out patient treatment and obtain mental health
treatment. On January 30, 2017, she enrolled in the outpatient program and then attend ed
only 8 out of 11 total sessions without completing the program.
L.B.’s case plan also required that she follow the recommendations of a September
2016 parenting assessment requiring that she complete individual mental health counseling
and dialectical behavioral therapy (DBT) classes. But, it was not until November 17, 2016,
again after the October 26, 2016, permanency progress review hearing, that she began her
individual therapy sessions in conjunction with her inpatient chemical dependency
treatment program and underwent DBT therapy. On December 20, 2016, after she left her
inpatient chemical dependency treatment program, she began biweekly individual mental
health therapy sessions, but stopped attending therapy and ceased her involvement in any
services when she moved to Texas on February 22, 2017.
The case plan also required that she visit and maintain contact with her children ,
who were continuously in foster care from May 13, 2016 through the date of the district
court’s order terminating L.B.’s parental rights on May 16, 2017. The district court found

3 After the October 26 hearing, L.B. completed an updated chemical dependency evaluation
which recommended that she enroll in an inpatient treatment program.
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that A.B. and M.B . were removed from L.B.’s care because of educational, mental , and
emotional neglect, and as a result of L.B.’s mental health illness and chemical abuse.
Initially, visits were schedul ed between L.B. and her children, and later
arrangements were made for L.B. to telephone her children three times each week, but L.B.
frequently failed to make the scheduled visits and telephone calls. One of the children’s
therapists reported that as a result of their missed visits and telephone calls with their
mother, the children were regressing in their therapy. When L.B. spoke with the children,
she focused on her issues and promised them that they would return home. The therapist
indicated that because L.B.’s absence in their lives was an underlying cause of A.B. and
M.B.’s mental health issues, her missed visits and telephone calls, as well as her unfulfilled
promises, were detrimental to the children’s progress in therapy . The therapist
recommended that when L.B. visited or spoke to t he children, she should focus on the
children, rather than herself, and that she not make promises to the children which she
could not fulfill. After L.B. only made 7 out of the scheduled 13 visits, MCHHS, upon the
recommendation of the therapist and the children’s guardian ad litem, suspended her visits
with the children on August 5, 2016. MCHHS later suspended L.B.’s telephone contact
with the children after she failed to make the calls as planned and failed to interact with the
children in a manner recommended by their therapist. From January 9 through March 21,
2017, L.B. was allowed to maintain contact with the children by writing letters, but, during
that period of time, she only sent two letters to them.
Both of the children’s therapists emphasized that a stable environment was
especially important for M.B. and A.B. M.B.’s therapist observed that M.B. “has been left
9
by his mother in the care of a third party at least once per year since 2012, frequently for
months at a time.” The therapist opined that as a result of his unstable environment, M.B.
suffered from reactive attachment disorder, attention deficit hyperactivity disorder,
oppositional defiant disorder, and generalized anxiety disorder. The therapist explained
that because of M.B.’s disorders, especially his reactive attachment disorder, M.B. needs a
predictable environment because it gives him a better sense of feeling safe and connected
to the people caring for him. As a result of M.B.’s mental health issues, it is more difficult
for him to establish relationships, including rapport with his therapist, and he needs to have
a predictable environment because of it. His therapist noted that if M.B. had to move to a
new therapist, it is likely that such move will involve a period of adjustment before M.B.
would be able to open up to the new therapist.
A.B.’s therapist also noted the importance of a s table and predictable environment
for A.B. She diagnosed A.B. with adjustment disorder, depre ssion, and anxiety.
Adjustment disorder involves difficulty with making a big life transition, and exhibiting a
lot of anxiety and depression related to the life transition. During therapy, A.B. indicated
that she felt her role in the family was to take care of everyone and make sure everyone
was safe. According to the guardian ad litem, A.B. was “worried about her mother being
suicidal and having to stop her from harming herself or leaving the home so she didn’t do
anything.” The therapist determined t hat one of the causes of A.B.’s mental health
concerns was her history of living with a caregiver with an untreated mental illness and
multiple moves related to her mother’s reports that they were being chased by people who
wanted to hurt her and the children.
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The district court, relying on the children’s therapists, found that both children need
safety, stability, and predictable parents, and that L.B. has not shown that she is ready or
able to be the stable and predictable parent that A.B. and M.B. need. In addition to her
failure to provide consistency in her contacts with the children, L.B. has been unable to
provide a stable and consistent living environment. Since initiation of the CHIPS
proceeding in May 2016, until the first date of the termination of parental rights hearing on
March 21, 2017, L.B. has lived in Lyle, Austin, and Sleepy Eye, Minnesota, and in Texas.
MCHHS has not always known where L.B. was living, and was unaware that she had
moved to Texas until a court proceeding. In fact, the reason L.B. missed several scheduled
visits with her children was because she moved from Austin to Sleepy Eye and did not
have reliable transportation to the visitation center in Austin. L.B. argues her housing in
Texas is adequate. But, because she did not comply with the requirements of her case plan
to stay in contact with MCHHS, the county has been unable to evaluate L.B.’s housing in
Texas. And, L.B.’s living in two states and four cities in less than a year’s time supports
the district court’s finding that L.B.’s housing has not been stable.
L.B.’s “decision to abandon all contact with social services in February 2017” is an
additional reason the district court found “that the present conditions of neglect would
continue for an indefinite period of time .” As set forth above, L .B. has failed to comply
with any of the other requirements of her case plan. And, at the time of trial, L.B. had
made no showing that she was able to provide the children with a stable living environment
or was otherwise in a positon to perform her duties as a parent.
11
L.B. also does not argue that the county failed to make reasonable efforts to reunite
her with her children. Rather, she only argues that she has made sufficient efforts to correct
the conditions that led to the out -of-home placement of the children. Based upon this
record, we conclude that the district court’s factual findings were not clearly erroneous and
that despite the provision of reasonable efforts by MCHHS, L.B. has failed to comply with
her case plan and correct the conditions that led to the out -of-home placement of her
children. Thus, the district court did not abuse its discretion in concluding that L.B. failed
to perform the duties imposed upon her related to the parent and child relationship, and that
reasonable efforts, under the direction of the court, have failed to correct the conditions
that led to the children’s out-of-home placement.
Best Interests
The district court’s conclusion that termination of L.B.’s parental rights is in the
best interests of A.B. and M.B. was also not an abuse of discretion. When deciding what
is in “the child’s best interests, the district court must balance the preservation of the parent-
child relationship against any competing interests of the child.” K.S.F., 823 N.W.2d at 668
(citation omitted); see Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3) (“[T]he court shall make
a specific finding that termination is in the best interests of the child and shall a nalyze: (i)
the child’s interests in preserving the parent-child relationship; (ii) the parent’s interests in
preserving the parent-child relationship; and (iii) any competing interests of the child. ” ).
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However, when the interests of the parent and child conflict, “the interests of the child are
paramount.” Minn. Stat. § 260C.301, subd. 7.
While L.B., A.B., and M.B. all have interests in preserving the parent -child
relationship, A.B. and M.B. have an overriding interest in establishing parental bonds with
a stable and predictable parent. The district court made specific findings that “the children
in this matter are in particular need of stability based on a persistent history of instability
as a result of [L.B.]’s actions,” and that a stable and predictable environment is important
for both A.B.’s and M.B.’s mental health. The persistent history of instability in the
children’s lives supports the district court’s finding “that prompt, permanent placement is
in the best interests of the children.” See Matter of Welfare of S.Z., 547 N.W.2d 886, 893
(Minn. 1996) (“[T]he best interests of a child are not served by delay that precludes the
establishment of parental bonds with the child by either the natural parent or adoptive
parents within the foreseeable future.”). And, because L.B. is not able to be the consistent
and stable parent that A.B. and M.B. need, and because she has been unable to correct the
conditions leading to their placement, the district court’s finding that the termination of
L.B.’s parental rights is in A.B.’s and M.B.’s best interests was not an abuse of discretion.
The district court’s findings that L.B. failed to comply with her duties as a parent
and that L.B., despite the provision of reasonable services and efforts by MCHHS, was not
able to correct the conditions that led to the children’s out -of-home placement were not
clearly erroneous. Therefore, the district court did not abuse its discretion by determining
that termination of L.B.’s parental rights was appropriate under Minn. Stat § 260C.301,
13
subd. 1(b)(2), (5), and that such termination of parental rights was in the best interests of
the children.
Affirmed.