In the Matter of the Welfare of the Children of: A. R. B. and D. T. R., Parents

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1218

In the Matter of the Welfare of the Children of:
A. R. B. and D. T. R., Parents

Filed January 26, 2018
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-JV-16-52

Mary F. Moriarty, Chief Hennepin County Public Defender, David W. Merchant, Assistant
Public Defender, Minneapolis, Minnesota (for appellant D.T.R.)

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

Shirley A. Reider, St. Paul, Minnesota (for guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Ross , Judge; and Johnson,
Judge.
S Y L L A B U S
A county does not satisfy its obligation under Minnesota Statutes, section
260C.219(a)(2)(i) (2016), to make reasonable efforts to reunite a family before terminating
a father’s parental rights when the county fails to produce a written case plan as described
in section 260C.212, subdivision 1 (2016), and the county is not excused of the obligation
by a father’s brief opposition to participating in developing a case plan.

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O P I N I O N

ROSS, Judge
The district court terminated a father’s parental rights after it found that he failed to
complete a case plan to correct the conditions that led to his son’s out-of-home placement.
But the county’s social-services agency never prepared a written case plan as required by
statute, even after the father, who was incarcerated, requested one. And it made no effort
to assist him in identifying any potentially suitable programming available to him while he
was in prison that may have facilitated his opportunity to reunif y with the child. Because
the county failed to make reasonable efforts to reunite father and son, we reverse the
decision terminating parental rights and remand for the district court to direct the county
to provide a case plan and allow a reasonable period for the father to complete it.
FACTS
D.T.R. and A.R.B. are the father and mother of M.W. R., who was born in January
2015. After the couple began their relationship in September 2013, D.T.R. became the stay-
at-home father to A. R.B.’s other children. The romantic relationship was physically
volatile and included methamphetamine use. Police responded to the couple’s home several
times to reports that D.T.R. abused A.R. B. or that the two were fighting. Soon after
M.W.R.’s birth, the Hennepin County Human Services and Public Health Department filed
a petition alleging that all of A.R.B.’s children were in need of protection or services.
Beginning in early March 2015 and for the duration of the case, the children were placed
in foster care.
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A county social worker (the first in a string of six or seven different social workers
who would be assigned to manage this case) met with D.T.R. in May 2015 abou t
developing a reunification case plan for him. But this was before the court adjudicated any
of the children to be in need of protection or services, and D.T.R. told the social worker
that he would work a case plan only after one was court-ordered. The next month, D.T.R.
was jailed for unrelated criminal conduct involving theft.
The following month, July 2015, the district court adjudicated the children to be in
need of protection or services. D.T.R. was still incarcerated for his theft offense. At that
time, the next in the series of social workers assigned to the case met with D.T.R. in the
county jail. D.T.R. then told her that he realized the importance of working on a case plan
to facilitate his reunification with the child, and he expressed his desire to do so. But the
county did not immediately develop any case plan for D.T.R.’s consideration or for court
approval.
Six months into D.T.R.’s incarceration period, in January 2016, the county
petitioned the district court to terminate D.T.R.’s and A.R.B.’s parental rights. During that
six months, the county still had not developed a case plan for D.T.R. or for the district
court’s approval. In fact, the July 2015 jailhouse meeting was the last time any county
social worker even met with D.T.R. about th e possibility of a case plan, and the county
never developed a case plan for him to complete at any point. One other social worker (the
sixth in the series of social workers assigned to the case) eventually did once telephone
D.T.R. during his incarceration, but the social worker never discuss ed the creation of or
D.T.R.’s progress in any case plan.
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Meanwhile, the county did immediately initiate a case plan for A. R.B., and the
district court approved it. And the record shows that the county provided A. R.B. various
services to help her complete the case plan. The district court would later find that A.R.B.
failed to make any significant progress on the issues that led to the out-of-home placement
of the children, including A.R.B.’s domestic-violence and anger -management issues,
chemical dependency, mental-health issues, parenting-deficiency issues, and home
instability or homelessness. But not only did the county develop no case plan for D.T.R. to
address any of these things, the record includes no evidence that the county attempted to
explore any possible reunification-oriented services available to him during his
incarceration before or after the county petitioned to terminate his parental rights.
The district court conducted a termination trial beginning in November 2016 and
ending in April 2017. The state released D.T.R. from prison in May 2017. In June 2017,
the district court termi nated D.T.R.’s parental rights, finding, “In order to correct [issues
that led to the child’s out-of -home placement] and reunify the family, the [county]
developed a case plan for [D.T.R.].” The court found also, “Despite the case plan and the
reasonable efforts of the [county], . . . [D.T.R.] did not correct the issues that led to the out-
of-home placement,” which include domestic violence, chemical dependency, and the
failure to provide a safe and stable home.
D.T.R. appeals.
ISSUE
Did the district court clearly err by finding that the county mad e reasonable efforts
to reunite D.T.R. with his son before the district court terminated D.T.R.’s parental rights?
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ANALYSIS
D.T.R. appeals from the district court’s order terminating his rights to parent his
son, M.W.R, arguing that the county failed to provide reasonable rehabilitative efforts to
reunify him with M.W.R. We review an order terminating parental rights to determine
“whether the trial court’s findings address the statutory criteria, whether those findings are
supported by substantial evidence, and whether those findings are clearly erroneous.” In re
Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). While we give considerable
deference to the district court’s decision to terminate a person’s parental rights, we closely
inquire into the sufficiency of the evidence to determine whether the ev idence was clear
and convincing. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
We will affirm the district court’s termination of parental rights when a statutory ground
for termination is supported by clear and convincing evidence, termination is in the best
interests of the child, and the county has made reasonable efforts to reunite the family . Id.
We decide this appeal on the last element— the county’s obligation to make reasonable
efforts to reunify D.T.R. with his son.
D.T.R. argues that we must reverse the district court’s order terminating his
parental rights because the county never prepared a written case plan defining the steps that
he needed to take to address the conditions that led to his son’s placement. Whether a
written case plan is required is a question of statutory interpretation, which we review de
novo. In re Welfare of J.J.P., 831 N.W.2d 620, 26 4 (Minn. 2013 ). When a statute is
unambiguous, we apply its plain language. Id.
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The operative statute here is plain and clear in every relevant particular. One
provision states that if a social-services agency determines that a child must be removed
from a parent, the agency “shall . . . prepare an out-of-home placement plan addressing the
conditions that [the] parent must meet before the child can be in that parent’s day -to-day
care.” Minn. Stat. § 260C.219(a)(2)(i) (2016). Another section says that “[a]n out-of-home
placement plan means a written document . . . prepared . . . jointly with the parent or parents
of the child.” Minn. Stat. § 260C.212, subd. 1(b) (2016). The plan “shall be” signed by the
parent, submitted to the court for approval, and explained to all persons involved in its
implementation. Id. at subd. (1)(b)(1), 3(c). And the plan must describe “the specific
reasons for the placement of the child in foster care, and when reunification is the plan, a
description of the problems or conditions in the home of the parent or parents which
necessitated removal of the child from home and the changes the parent or parents must
make for the child to safely return home,” as well as the “services offered and provided to
prevent removal of the child from the home and to reunify the family.” Minn. Stat.
§ 260C.212, subd. 1(c)(2), (3). Based on this statutory expression of the mandatory nature
of a case plan and the statute’s plain description of its necessary components, we have no
difficulty answering whether the county was required to provide D.T.R. with a court-
approved, written case plan: it was.
The district court indeed found that the county developed a case plan and that D.T.R.
failed to meet the plan’s requirements. But D.T.R. reasonably calls these findings into
doubt. We will determine a finding to be clearly erroneous, and reject it, if we examine the
record and are lef t with a definite and firm conviction that the finding is a mistake.
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Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 ( Minn. 2013). We are certain
that the findings that the county developed a case plan and that D.T.R. failed to meet that
plan are mistakes. No statutorily described, court-approved case plan for D.T.R. appears
anywhere in the record . And while the county does argue that D.T.R. failed to meet the
“initial case plan,” the county is not referring to a statutory case plan but to the district
court’s preliminary order adjudicating the children to be in need of protection or services.
That order instructed the various fathers of A.R.B.’s children to cooperate with the county
in its recommended programming, to establish paternity, and to obtain safe and suitable
housing. The initial order does not constitute the statutorily required “case plan” we have
outlined because it lacks any of the critical elements imposed by statute. For example, that
order nowhere explains with any specificity the changes D.T.R. had to make for the child
to return home, and it did not describe any “services offered and provided to . . . reunify
the family.” Minn. Stat. § 260C.212, subd. 1(c)(3). We hold as clearly erroneous the district
court’s finding that, “In order to correct [issues that led to the child’s out- of-home
placement] and reunify the family, the [county] developed a case plan for [D.T.R.],” and
its finding that, “Despite the case plan and the reasonable efforts of the [county], . . .
[D.T.R.] did not correct the issues that led to the out-of-home placement.”
The county argues that the lack of a written case plan is excusable because its
absence is directly attributable to D.T.R. It is true that, although a written case plan is
required in every case, the county’s failure to provide one does not automatically warrant
reversal if the circumstances render the lack of a case plan excusable. In re Welfare of
Children of R.W., 678 N.W.2d 49, 56 (Minn. 2004). But the lack of a case plan is excusable
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only in extreme circumstances, like when a parent repeatedly abandons her child and states
that she wishes to relinquish her parental rights, In re Welfare of R.M.M., 316 N.W.2d 538,
542 (Minn. 1982), or when efforts to “reunite” the family would be “futile” because, for
example, no parent-child relationship ever existed, R.W., 678 N.W.2d at 56. Neither of
these exceptions to the case-plan requirement applies here. As the supreme court explained,
requiring a case plan “would put an impossible burden on counties to provide services”
when an incarcerated person “has chosen not to respond to a CHIPS petition despite being
given the opportunity to do so.” R.W., 678 N.W.2d at 56. But D.T.R. never expressed any
intent to forfeit his parent-child relationship or his parental rights, and the district court did
not find that efforts to reunite D.T.R. with his son would be futile. The closest thing to
evidence that efforts to reunify D.T.R. and his son woul d be futile is D.T.R.’s statement
early on that he would follow a case plan only after the court ordered one. But D.T.R.’s
resistance was extremely short-lived, and the county seems to have done nothing to develop
a case plan after D.T.R. expressly invited one.
The county also argues that, even in the absence of a written case plan, D.T.R. knew
the steps he needed to take to correct the conditions that led to his son’s placement and
therefore failing to complete a plan was a harmless error. We do not believe the county’s
proposed exception squares with the statute. And we are persuaded by D.T.R.’s counter
that it was impossible for him to know what steps he needed to take to correct the conditions
in the absence of a case plan. The testimony in the record concerning the contents of
D.T.R.’s alleged case plan is limited and inconsistent. When asked what D.T.R.’s alleged
case plan included, the supervising county official was unsure:
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For him to participate in domestic violence
programming, for supervised visits – or, actually, I apologize.
No. There was no contact because of an OFP. Chemical
dependency treatment, and I believe there might be another
one, but I’m completely blanking on that at the moment, so I
apologize.

When asked whether any social workers spoke with D.T.R. about his chemical
dependency, she said, “I can’t recall from the notes specific conversations, but it would
have been – should have been [a] topic of conversation if it was a case plan item and
partially due to the fact that he had self -reported some chemical dependency use.” We
conclude that pointing to a deficient parent’s personal awareness of his significant issues
that triggered out-of-home placement is no substitute for the case-plan process, which
includes the directive document required by statute.
We recognize that D.T.R. was incarcerated and that this circumstance might change
what qualifies as “reasonable” under the county’s duty to make “reasonable efforts” to
reunite father and child. But the statute nowhere excuses the county of making reasonable
efforts in this situation, and it is well established that “[i]ncarceration alone does not
necessarily preclude a person from acting in a parental role.” In re Welfare of Children of
A.I., 779 N.W.2d 886, 892 (Minn. App. 2010) (citing cases). The county identifies nothing
in this situation that prevented it from creating a case plan for D.T.R. and attempting to
coordinate with prison officials about the availability of potentially suitable programming
during D.T.R.’s incarceration period. The supervisor responsible for managing the series
of social workers assigned to this case conceded at trial that the social workers failed to
meet the agency’s own policy to connect with parents while they are in prison to coordinate
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services pending their release. The county does not support its assertion that its lack of
control over prison services would have rendered futile a case plan directing D.T.R. to
complete chemical-dependency and domestic-abuse programming. And at no point did the
county ask the district court to dispense with the need for reasonable efforts because of
futility. See Minn. Stat. § 260.012(a) (“Reasonable efforts . . . for rehabilitation and
reunification are always required except upon a determination by the court that” specified
circumstances exist.) (emphasis added).
We appreciate the district court’s difficult y in addressing the parental rights of a
father who has not addressed the presenting issues. The evidence at trial supports the
district court’s conclusions that D.T.R. has not overcome his issues of domestic violence,
chemical dependency, and failure to provide a safe and stable home. We therefore do not
suggest that the district court should unsettle any ongoing custody arrangement unless and
until it is satisfied that D.T.R. has in fact overcome the conditions that led to the placement.
We hold only that, on this record, because the county did not prove that it made reasonable
efforts to reunite father and child, the district court abused its discretion by termin ating
D.T.R.’s parental rights.
We therefore reverse the district court’s termination of D.T.R.’s parental rights. We
remand for the district court to allow the county to prepare jointly with D.T.R. a written
case plan as defined by statute and to allow D.T.R. the opportunity to complete it.
D E C I S I O N
Because the county did not provide D.T.R. with a written case plan as described by
Minnesota Statutes, section 260C.212, subdivision 1 (2016), particularly after he requested
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one, or even attempt to determine whether any prison programming might have been
available to D.T.R. and suitable to include in a case plan to correct the conditions that led
to his son’s out-of-home placement, the county failed to make reasonable efforts to reunite
the family as required by section 260C.219(a)(2)(i) (2016).
Reversed and remanded.