In the Matter of the Welfare of the Child of: N. E. R. and W. G. R., 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This opinion will be unpublished and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
A17-1112

In the Matter of the Welfare of the Child of: N. E. R. and W. G. R., Parents

Filed January 22, 2018
Affirmed
Larkin, Judge

Clay County District Court
File No. 14-JV-17-1020

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for appellant W.G.R.)

Brian J. Melton, Clay County Attorney, Jenny M. Samarzja, Chief Assistant County
Attorney, Moorhead, Minnesota (for respondent)

Laurie Christianson, Moorhead, Minnesota (guardian ad litem)

Considered and decided by Smith, Tracy M. , Presiding Judge; Larkin, Judge; and
Hooten, Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant father challenges the district court’s order terminating his parental rights,
arguing that the court erred by basing the order on both voluntary and involuntary grounds.
We affirm.
2
FACTS
Appellant W.G.R. is the father of B.R., born in May 2016.1 On August 12, 2016,
respondent Clay County Social Services filed a child in need of protection or services
(CHIPS) petition regarding B.R. Father admitted the CHIPS petition, and the district court
adjudicated B.R. a CHIPS. After B.R. had been placed out of the home for approximately
seven months, the county petitioned to involuntarily terminate father’s parental rights
under Minn. Stat. § 260C.301, subd. 1(b)(2), (b)(5) (2016) , alleging that father had failed
to comply with the duties imposed upon him by the parent and child relationship and failed
to correct the conditions leading to B.R.’s out-of-home placement.
Two days before the scheduled trial on the count y’s petition , father filed a
counterpetition seeking to voluntarily terminate his parental rights for good cause under
Minn. Stat. § 260C.301, subd. 1(a) (2016). Father alleged that his intellectual capacity
limited his “ability to properly parent his child and learn and understand the developmental
needs of his child,” that B.R. has developmental delays requiring a “greater-than-average
understanding of the child’s needs and development,” and that, although he had improved
his parenting abilities, he had not made enough progress to allow B.R. to be placed with
him at that time or in the reasonably foreseeable future.
The case proceeded to trial on the competing termination of parental rights ( TPR)
petitions. The county presented testimony in support of its petition from a social worker
who had been assigned to work with father and mother and from two public health nurses

1 B.R.’s mother voluntarily terminated her parental rights to B.R. in the underlying
proceeding. Mother is not a party to this appeal.
3
who had worked with the family. Father admitted the grounds for his voluntary TPR
petition and testified that it was in B.R.’s best interests not to return to his care because of
his cognitive limitations, mental - and physical -health issues, and limited parenting
abilities.
After testifying in support of his petition , father moved “for a directed verdict in
favor of [his] counter petition.” Father argued that he had provided clear and convincing
evidentiary support for a voluntary TPR and that “a basis for involuntary [TPR] is not
relevant if there is good cause for a voluntary.” The district court questioned whether there
was authority indicating that one petition “stops the other if the end result is termination of
parental rights,” but the district court did not decide the issue . Instead, it denied father’s
motion because there was insufficient testimony regarding informed consent for father’s
admission.
The guardian ad litem ( GAL) testified that termination of father’s parental rights
was in B.R.’s best interest because B.R. “needs permanency and [TPR] would afford
permanency for him.” The GAL did not take a position regarding whether voluntary or
involuntary termination would be more appropriate.
The district court found that “[t]he evidence submitted to the Court is sufficient to
prove both the County’s Petition for Involuntary Termination, and [father’s]
Counterpetition for Voluntary Termination” and that “both petitions establish that it is in
[B.R.’s] best interests for [father’s] parental rights to be terminated .” The district court
granted both petitions , terminating father’s parental rights to B.R. on both voluntary and
involuntary grounds. Father appeals.
4
D E C I S I O N
A district court “may upon petition, terminate all rig hts of a parent to a child:
(a) with the written consent of a parent who for good cause desires to terminate parental
rights; or (b) if it finds that one or more of [nine statutory grounds for in voluntary
termination] exist.” Minn. Stat. § 260C.301, subd. 1 (2016). One of the statutory bases
for involuntarily terminating a parent’s parental rights is that the parent is palpably unfit to
be a party to the parent -child relationship. Minn. Stat. § 260C.301, subd. 1(b)( 4). “It is
presumed that a parent is palpably unfit 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.” Id.
Father contends that the district court erred as a matter of law by granting TPR on
both voluntary and involuntary grounds.2 Specifically, father argues that “if a District
Court finds good cause for a voluntary termination of parental rights, the proceedings are
voluntary regardless of possible additional grounds for involuntary termination.”3 Father’s

2 Father does not otherwise challenge the district court’s order terminating his parental
rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (b)(5).
3 At oral argument, father modified his position in response to questioning by this court.
He argued that if both voluntary and involuntary grounds for TPR are proved, a district
court must choose one or the other, and cannot order termination on both grounds. He
agreed that a best-interests determination could influence the district court’s choice in such
circumstances. The county disagreed, arguing that if a basis for involuntary TPR is proved,
the district court must order involuntary termination. The county also disagreed that a
district court could rely on a best -interests determination to order volunt ary termination,
and not involuntary termination, if both grounds were proved. However, the county argued
that a district court does not err by ordering termination on both voluntary and involuntary
grounds, as happened here. Because the parties did not brief whether a district court may
select either a voluntary or involuntary basis for TPR if both grounds are proved, we limit
our analysis to the issue statement in father’s brief: “If the District Court finds good cause
5
argument raises an issue of law, which we review de novo. See In re Welfare of J.M., 574
N.W.2d 717, 721 (Minn. 1998) (stating that questions of law in a TPR case are reviewed
de novo).
I. The district court’s findings supporting voluntary and involuntary TPR are
not “factually inconsistent,” “legally inconsistent,” or “legally redundant.”

Father argues that the district court’s findings supporting voluntary and involuntary
TPR are “factually inconsistent,” “legally inconsistent,” and “legally redundant. ” The
district court found that voluntary TPR was supported by father’s admissions that his ability
to parent B.R. was compromised by his cognitive limitations, mental- and physical-health
issues, and limited parenting skills. The district court found that involuntary TPR was
supported by evidence regarding father’s cognitive limi tations, mental-health issues, and
limited parenting skills. Thus, the district court’s findings supporting both voluntary and
involuntary grounds for TPR are not factually inconsistent. They generally reflect father’s
inability to provide for B.R.’s needs as a result of his cognitive limitations, mental-health
issues, and inadequately developed parenting skills.
As to the purported legal inconsistency, f ather argues that because the words
“voluntary” and “involuntary” have opposite meanings, “actions cannot, by definition, be
both voluntary and involuntary.” Despite the logical appeal of father’s argument, “[t]he
Legislature is at liberty to ignore logic and perpetrate injustice so long as it does not

for a voluntary termination of par ental rights, the proceedings result in a voluntary
termination of parental rights regardless of the existence of cause for an involuntary
termination.”
6
transgress constitutional limits.” State ex rel. Coduti v. Hauser , 219 Minn. 297, 303, 17
N.W.2d 504, 507 (1945).
Moreover, this court “presume[s] that plain and unambiguous statutory language
manifests legislative intent. If statutory language is plain and unambiguous, the court must
give it its plain meaning.” J.M., 574 N.W.2d at 721. T he TPR statute provides that a
district court may terminate all rights of a parent to a child with the written consent of a
parent who for good cause desires to terminate parental rights or if it finds that one or more
of the statutory grounds for involuntary termination exist. Minn. Stat. § 260C.301, subd.
1. The plain language of the TPR statute does not prevent the district court from
terminating parental rights on multiple grounds, including both voluntary and involuntary
grounds.
Nor does the plain language i ndicate t hat proof of a voluntary ground for TPR
trumps proof of an involuntary ground. The legislature has demonstrated its ability to
prioritize among different legal outcomes that could be based on one set of facts. For
example, Minn. Stat. § 609.04, subd. 1 (2016), provides that “ [u]pon prosecution for a
crime, the actor may be convicted of either the crime charged or an included offense, but
not both.” Minn. Stat. § 609.035, subd. 1 (2016), provides that , with certain exceptions,
“if a person’s conduct constitutes more than one offense . . ., the person may be punished
for only one of the offenses and a conviction or acquittal of any one of them is a bar to
prosecution for any other of them .” The legislature did not include similar language
limiting the relief a district court may provide if a set of f acts establishes both voluntary
7
and involuntary grounds for TPR.4 Father would have us read such la nguage into the
statute to conclude that if grounds for both voluntary and involuntary termination are
proved, the district court may only terminate on the voluntary ground. We cannot supply
what the legislature has omitted through intention or inadvertence. Premier Bank v. Becker
Dev., LLC , 785 N.W.2d 753, 760 (Minn. 2010). For these reasons , we reject father’s
argument that the district court’s findings are legally inconsistent.
As to the purported legal redundancy, f ather argues that “[t]he existence of an
involuntary basis for termination is irrelevant if the Court finds good cause for a voluntary
termination,” relying on In re Welfare of D.D.G., 558 N.W.2d 481, 486 (Minn. 1997). In
D.D.G., a parent agreed to voluntarily terminate his parental rights to a child for good cause
on the second day of a trial on an involuntary TPR petition. 558 N.W.2d at 483. The
district court found good cause and terminated the parent’s parental rights to the child. Id.
at 484. On appeal, the parent argued that his c onsent was invalid and that the record did
not support good cause for termination. Id. at 484-85. The supreme court rejected those
arguments. Id. at 485-86.
In discussing the district court’s good-cause determination, the supreme court noted
that the parent and the county inappropriately focused their arguments on whether the

4 Our research after oral argument led us to Minn. R. Juv. Prot. P. 42.08 , subd. 2(c)(4),
which provides that at a hearing on a petition for voluntary TPR, the district court shall
“obtain a waiver of the right to trial on the involuntary petition when the parent is
voluntarily consenting to termination of parental rights after an involuntary termination of
parental rights petition has been filed.” Because neither party cited or discussed this rule
and it is not apparent how the rule impacts our analysis, we leave consideration of the rule
for another day.
8
parent was a responsible parent because the determination of whether good cause exists for
voluntary termination “is not restricted by the existence of cause for involuntary
termination” Id. But the supreme court did not consider or decide the issue in this case:
whether a district court may grant termination of parental rights on both voluntary and
involuntary grounds if both grounds are proved. Thus, the supreme court’s holding in
D.D.G. is not as broad as father suggests , and it does not lead to the conclusion that a
proven basis for involuntary termination is ineffectual if a district court also finds good
cause for a voluntary termination.
In sum, the district court’s findings supporting termination of father’s parental rights
on both voluntary and involuntary grounds are not factually inconsistent, legally
inconsistent, or legally redundant.
II. Father did not convert the involuntary TPR proceeding into a voluntary
proceeding by filing a voluntary TPR petition.

Father argues that by filing a voluntary TPR petition, he “successfully converted the
involuntary proceedings into a voluntary one,” relying on In re Welfare of W.L.P. , 678
N.W.2d 703, 712 (Minn. App. 2004). In W.L.P., a parent challenged an order terminating
his parental rights, arguing that the district court erred by concluding that his parental rights
to another child had been involuntarily terminated and by therefore erroneously “subjecting
him to the sta tutory presumption that he [was] palpabl y unfit to parent.” 678 N.W.2d at
711. In the prior TPR proceeding, the parent had admitted the allegations of a county’s
petition for involuntary TPR. Id. at 7 07. The parent argued that “his admission to the
9
allegations in the petition converted the involuntary termination into a voluntary
termination.” Id. at 711.
This court rejected that argument, holding that “[a]dmitting to the allegations in a
petition to terminate parental rights does not convert the proceeding into a voluntary
termination of parental rights” and that “[t]o voluntarily terminate parental rights the parent
must affirmatively demonstrate a desire to terminate the parent-child relationship for good
cause.” Id. at 705. In doing so, this court observed that
there are at least two procedures parents can utilize to convert
an involuntary termination petition into a voluntary one.
Parents can: (1) file a new petition supported by a factual basis
articulating good cause and cite to Minn. Stat. § 260C.301,
subd. 1(a), as the statutory aut hority for the petition; or
(2) formally amend the original pe tition to cite to Minn. Stat.
§ 260C.301, subd. 1(a), as the statutory basis for the petition.

Id. at 712. The parent in W.L.P. “did not avail himself of either procedure.” Id.
Father argues that because this court “did not create any requirement that the County
must agree to a voluntary termination or consent to d ismiss its involuntary petition” in
W.L.P., he converted the county’s involuntary TPR petition to a voluntary petition by filing
his counterpetition and establishing good cause for termination. Father’s argument, as well
as his reliance on W.L.P., is unavailing for three reasons.
First, “‘[d]icta,’ or more properly ‘obiter dicta,’ generally [are] considered to be
expressions in a court’s opinion which go beyond the facts before the court and therefore
are the individual views of the author of the opinion and not binding in subsequent cases.”
State ex rel. Foster v. Naftalin , 246 Minn. 181, 207 , 74 N.W.2d 249, 266 (1956) .
Regardless of this court’s statements in W.L.P. regarding how to “convert” an involuntary
10
termination petition into a voluntary one, this court was not presented with such an
attempted conversion. We therefore treat this court’s statements in W.L.P. regarding the
hypothetical conversion of an involuntary TPR petition into a voluntary petition as
nonbinding dicta.
Second, this court did not cite authority for its assertion that a parent can “convert”
another party’s involuntary TPR petition into a voluntary one, and we are not aware of such
authority. We again turn to the plain language of the current TPR statute, which does not
describe a procedure for converting an involuntary petition into a voluntary petition. Minn.
Stat. § 260C.307 (2016) (describing procedures in t erminating parental rights). We also
turn to the current Minnesota Rules of Juvenile Protection Procedure, which do not
authorize such conversion or amendment of another party’s petition for TPR. Instead, the
relevant rule provides, “A party . . . shall file a permanent placement petition if the party
disagrees with the permanent placement determination set forth in the petitions filed by
other parties.” Minn. R. Juv. Prot. P. 33.01, subd. 4(b) (emphasis added). In sum, we are
not aware of precedential authority allowing a party to convert or amend another party’s
petition for TPR.
Third, and most importantly, allowing a parent to unilaterally prevent the
involuntary termination of his parental rights even if statutory grounds for an involuntary
termination are alleged and proved is inconsistent with “[t]he paramount consideration in
all juvenile protection proceedings ,” which is “the health, safety, and best interests of the
child.” Minn. Stat. § 260C.001, subd. 2(a) (2016). In any TPR proceeding, “the best
interests of the child must be the paramount consideration.” Minn. Stat. § 260C.301, subd.
11
7 (2016). The legislature’s creation of a presumption of palpable unfitness based on a prior
involuntary TPR indicates that the legislature was concerned with the effect of a TPR on
the parent’s other children. See Minn. Stat. § 260C.301, subd. 1(b)(4) (setting forth
presumption of palpable unfitness).
The district court is entrusted to determine the best interests of children in a T PR
proceeding, and it generally has great discretion when determining the best interests of
children. See Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000) (stating
that in matters of child custody, the law “leaves scant if any room for an appellate court to
question the [district] court’ s balancing o f best -interests c onsiderations”). Allowing a
parent to unilaterally “convert” an involuntary TPR proceeding into a voluntary one and
thereby eliminate a potential presumption of palpable unfitness that could protect other
children who may be affected by the TPR would usurp the district court’s authority to
provide for the best interests of children. Indeed, limiting a district court to a n order for
voluntary TPR even though grounds for involuntary T PR have been proved seems
antithetical to the paramount best-interests consideration.
In sum, father did not convert the county’s involuntary TPR proceeding i nto a
voluntary one by filing a petition for voluntary TPR.
Conclusion
Error on appeal is never presumed. Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d
542, 546 (1949). It must be shown by the party asserting it. Id. In this case, father does
not persuade us that the district court erred by terminatin g his parental rights on both
voluntary and involuntary grounds. Because father does not otherwise cha llenge the
12
district court’s termination of his parental rights on involuntary grounds under Minn. Stat.
§ 260C.301, subd. 1(b)(2), (b)(5), we affirm the termination order in its entirety, as well as
the resulting presumption of palpable unfitness.
Affirmed.