In the Matter of the Welfare of the Child of: H. N. N., and T. D. J. P., 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This opinion will be unpublished and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
A17-1077

In the Matter of the Welfare of the Child of:
H. N. N., and T. D. J. P., Parents.

Filed December 11, 2017
Affirmed
Halbrooks, Judge

Olmsted County District Court
File No. 55-JV-17-913

Steven Murakami, Rochester, Minnesota (for respondent H.N.N.)

Michael D. Schatz, Donnelly Law Office, Rochester, Minnesota (for appellant T.D.J.P.)

Mark A. Ostrem, Olmsted County Attorney , Debra A. Groehler, Assistant County
Attorney, Rochester, Minnesota (for respondent Olmsted County Community Services)

Jesse Buggs, Lanesboro, Minnesota (guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
In this appeal from the termination of his parental rights, appellant challenges the
district court’s determination that he is palpably unfit to be a parent and that his child was
neglected and in foster care. We affirm.

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FACTS
Respondent-mother H.N.N. and appellant-father T.D.J.P. are the parents of J.P.A.P.
(the child), who was born on January 9, 2015. In March 2016, respondent Olmsted County
Community Services received a report from the Rochester Police Department that appellant
had held mother in the apartment against her will for a few days. Police found mother
covered in bruises. She reported that appellant had repeatedly assaulted and threatened
her. Mother told the county that she and appellant used drugs together , that appellant had
been violent toward her for most of their two-year relationship, and that her children were
exposed to the violence. The county filed a child in need of protection or services (CHIPS)
petition in early July 2016, and the district court found t hat the child was in need of
protection or services on July 25.
The county contacted appellant and worked with him in a number of different ways,
including advising him of the child’s out-of-home placement, providing him with contact
information, allowin g visits with the child via interactive video while appellant was
incarcerated, meeting with appellant in jail, and formulating a case plan with him.
Although appellant sometimes communicated with the county and expressed a desire to
spend time with his son, there were times when he did not contact the county despite being
asked to do so. He also refused to sign the case plan that the county prepared for him. The
county ceased reunification efforts between appellant and the child in December 2016.
In February 2017, the county petitioned for the termination of parental rights (TPR)
of both parents . Mother signed an affidavit of involuntary termination of her parental
rights. Appellant contested the petition, and t he case proceeded to a court trial. Because

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of a prior involuntary TPR in 2014 involving a different child , appellant was presumed
palpably unfit to be a parent under Minn. Stat. § 260C.301, subd. 1(b)(4) (2016). Following
trial, the district court concluded that (1) appellant did not rebut the presumption that he is
palpably unfit to parent; (2) the child was neglected and in foster care, pursuant to Minn.
Stat. § 260C.301, subd. 1(b)(8) (2016); and (3) termination of appellant’s parental rights is
in the child’s best interests. This appeal follows.
D E C I S I O N
On appeal from a district court’s decision to terminate parental rights, we 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) . “[W]e review its determination of whether a particular statutory basis for
involuntarily terminating parental rights is present for an abuse of discretion.” Id.
Appellant argues that the district court erred in its determination that he failed to
overcome the presumption that he is palpably unfit to be the child’s parent. A district
court’s determination of whether a parent has rebutted a presumption of palpable unfitness
created by Minn. Stat. § 260C.301, subd. 1(b)(4), i s a finding of fact that, on appeal, is
reviewed to determine whether it is supported by substantial evidence and is not clearly
erroneous. In re Welfare of Child of D.L.D., 771 N.W.2d 538, 544 (Minn. App. 2009).
A district court may terminate parental r ights if it finds that “a parent is palpably
unfit to be a party to the parent and child relationship.” Minn. Stat. § 260C.301, subd.
1(b)(4). “It is presumed that a parent is palpably unfit . . . upon a showing that the parent’s
parental rights to one or more other c hildren were involuntarily terminated.” Id. Here, it

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is undisputed that appellant’s rights to parent a different child were previously involuntarily
terminated. Therefore, a ppellant had the burden to rebut the presumption of palpable
unfitness. In re Welfare of Child of J.W., 807 N.W.2d 441, 445 (Minn. App. 2011), 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. (quoting Minn. R.
Evid. 301, 1977 comm. cmt.).
Appellant contended at trial and now on appeal that he presented sufficient evidence
to satisfy his burden of production. Appellant testified that he has taken steps to improve
himself and his ability to parent , including completion of classes in domestic violence,
parenting, and welding; participation in the Father Project; remaining drug-free since July
2016; completion of the Crossroads drug -recovery program ; and attending NA/AA
meetings once or twice a month.
The district court made detailed findings addressing appellant’s efforts to satisfy his
burden of production, recognizing the county’s reasonable efforts to rehabilitate appellant,
although such efforts were not required pursuant to Minn. Stat. § 260.012(a)(2) (2016) due
to appellant’s prior involuntary TPR. The district court found:
16. [The county] has made reasonable efforts to
rehabilitate the parents and to reunify the child with them.
Services offered to the family include the following: case
management, foster care, child care, safety planning, family
group conference referral, and visits at the Olmsted County
Adult Detention Center. The services offered were
appropriate, reasonable, available, and necessary for the
parents to correct the condit ions leading to the child’s
placement out of the home. . . .

. . . .

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18. [Appellant] is currently incarcerated at MCF -
Stillwater. He testified that his anticipated release date is June
11, 2018.1 [Appellant] admitted that he is not able to care for
his child right now, nor can he meet the child’s basic needs of
food, clothing, and shelter. . . .

19. [Appellant] testified that prior to March 2016, he
was involved in his son’s life on a daily basis when he was not
in jail. [Appellant] testified that he was in jail for
approximately six months while [ mother] was pregnant with
his child, and then another six months after his child was born.
[Appellant] does not believe his parental rights should be
terminated because he plans to take care of his child when he
is released from prison. His plan upon release from prison was
vague: “live with father in Minneapolis.” He did not provide
any details regarding the home, who lives in the home, or how
he would provide for the day -to-day care of a child in a s afe
and nurturing environment.

. . . .

21. Mr. Gauthier [the child protection worker]
testified that he also tried to work with [appellant] and engage
him in services. Mr. Gauthier had concerns regarding
[appellant’s] ability to safely parent, including domestic
violence, drug use, and untreated mental health. Mr. Gauthier
spoke with [appellant] just before [he] was released from the
Olmsted County Adult Detention Center (“ADC”) in October
2016. Mr. Gauthier provided [appellant] a business card and
indicated that [appellant] should call Mr. Gauthier to set up a
meeting. [Appellant] never contacted Mr. Gauthier upon his
release from the ADC. Mr. Gauthier called [appellant’s]
mother to see if she knew where [appellant] was, but she was
unable to find hi m. Mr. Gauthier testified that he later found
out [appellant] was taken into custody in Hennepin County
following another incident in which [appellant] held [ mother]
against her will. This incident occurred while there was an
active Domestic Abuse No Contact Order (“DANCO”)
between [appellant] and [mother].

1 “Minnesota Department of Corrections Offender locator indicates that [appellant’s]
anticipated release date is August 6, 2018.”

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The district court concluded that appellant’s circumstances were “largely the same
as in 2014, when his parental rights to another child were terminated,” and that he failed to
introduce evidence that he could successfully parent his child. Based on our review of the
record, the district court’s findings are supported by substantial evidence and are not clearly
erroneous.
Appellant also argues that the district court erred in its determination that
termination of his parental rights is proper because the child was neglected and in foster
care under Minn. Stat. § 260C.301, subd. 1(b)(8). The statute states that a child who is
“neglected and in foster care” is one:
(1) who has been placed in foster care by cour t order;
and
(2) whose parents’ circumstances, condition, or conduct
are such that the child cannot be returned to them; and
(3) whose parents, despite the availability of needed
rehabilitative services, have failed to make reasonable efforts
to adjust t heir circumstances, condition or conduct, or have
willfully failed to meet reasonable expectations with regard to
visiting the child or providing financial support for the child.

Minn. Stat. § 260C.007, subd. 24 (2016).
Appellant asserts that the record does not contain clear and convincing evidence that
he willfully or deliberately failed with respect to his parental duties because his failures
were the result of his incarcerations. While stating that a parent’s incarceration cannot be
the sole basis for terminating parental rights, the district court properly considered
appellant’s incarcerations in combination with other evidence supporting the TPR petition,
citing In re Child of Si mon, 662 N.W.2d 155, 162 (Minn. App. 2003). Here, the district

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court’s findings address the statutory criteria and are supported by substantial evidence.
We therefore conclude that the district court acted within its discretion by terminating
appellant’s parental rights.
Affirmed.