In the Matter of the Welfare of the Children of: C. P. T. and S. B. I. T., 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This opinion will be unpublished and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
A17-1251

In the Matter of the Welfare of the Children of: C. P. T. and S. B. I. T., Parents.

Filed February 12, 2018
Affirmed
Reilly, Judge

Crow Wing County District Court
File No. 18-JV-16-4661

Donald F. Ryan, Crow Wing County Attorney, Laura E. Welle, Assistant County Attorney,
Brainerd, Minnesota (for appellant Crow Wing County Community Services)

Cathleen Gabriel, Annandale, Minnesota (for respondent S.B.I.T.)

Melanie R. Dotty, Melanie R. Dotty, P.A ., Pequot Lakes, Minne sota (for respondent
C.P.T.)

Tina Jay, Baxter, Minnesota (guardian ad litem)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Crow Wing County Community Services (the county) challenges the
district court’s denial of its petition to term inate respondent-father’s parental rights.
Because we conclude the district court did no t abuse its discretion in concluding that the

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county did not prove a statutory basis for te rmination of parental rights by clear and
convincing evidence, we affirm.
FACTS
Respondent-father S.B.I.T. (father) married C.P.T. (mother) in March 2012, and
they had two children together: S.S.T. was born in 2013, and D.N.T. was born in 2014.
Father has a history of driving while impaired (DWI) offenses: he was convicted of
two DWI offenses occurring in 2011 and one DWI-test refusal in 2013. Although father
missed the birth of S.S.T. in 2013 because he was in jail on his test-refusal offense, he did
not stop drinking alcohol. In February 2014, a district court ordered father to intensive
supervised probation (ISP) with random breath tests for a period of two years.
Mother and father had a strained relati onship when S.S.T. was around 18 months
old and D.N.T. was an infant. The two frequ ently argued, and yelling occurred when the
children were present. On February 2, 2015, mother and father had a physical altercation
at home. Mother alleged that father strangled her. Father denied the strangling and claimed
that mother slapped him and that he pushed her when she blocked a doorway. The police
were called, and because father was on proba tion he was required to take a breath test,
which showed a 0.037 alcohol concentration (AC). He was arrested and charged with
domestic assault—strangulation. Mother wa s cited for domestic a ssault and the children
stayed with her. Both mother’s and father’s domestic assault charges were later dismissed.
Father was not able to have contact with the children for a period of time after the
February 2, 2015 incident. In March, father commenced divorce proceedings. Due to
father’s pending assault case, a domestic abuse no contact order was in place. Although

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the dissolution court allowed father visitation in April 2015 at a third party’s residence in
St. Cloud, mother moved to th e Brainerd area, complicating father’s ability to see the
children.
In November 2015, father had his last vis it with the children fo r a period of five
months. Mother took the children to Colorado for three weeks around that time. She was
living with a man who had a criminal history of felony drug possession, domestic assaults,
and DWIs. During this tim e the children were exposed to domestic abuse and
methamphetamine use. A January 2016 custody decree awarded mother sole legal and sole
physical custody. Father was awarded weekly visitation.
On January 26, 2016, law enforcement responded to a welfare check due to concerns
about mother’s drug use and domestic violence in the home. Authorities took the children
out of the home and placed them on a 72-hour hold. The children’s hair tested positive for
methamphetamine. The county filed a petition th e next day to adjudicate the children in
need of protection or services (CHIPS). The children were adjudicated CHIPS on
March 22, 2016.
On February 3, 2016, father was successfully discharged from two years of ISP after
having negative breath tests on each of the ra ndom breath tests. Father met the county
social worker on February 10, 2016. She requested an alcohol test and father tested
positive. After testing positive for alcohol once more in Febr uary 2016, father provided
two diluted urine samples in March and April.
Father and the social worker created an out-of-home placement plan, which called
for father to: (1) abstain from alcohol, (2) submit to random urine tests (UAs), (3) complete

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a chemical-dependency (CD) assessment, (4) complete a domestic-violence assessment,
(5) complete a psychological assessment, and (6) follow all recommendations of the
assessments. At the time of his initial case plan, father had maintained independent
housing, was a full-time college student, and was working full time holding various jobs.
On February 29, 2016, the children were pl aced in a foster home. S.S.T. was two
years old, and D.N.T. was one.
In March 2016, after a conversation with father’s probation officer, the social
worker mistakenly thought that father’s breath-test result on February 2, 2015, showed a
0.37 AC after the alleged domestic-assault incident, when the actual result was a 0.037 AC.
In March 2016, father completed a domestic-violence assessment, and the assessor
had no safety concerns with fa ther having supervised vis its with the children. The
domestic-assault charges against father were dismissed that month. The assessment
recommended that father either attend individual therapy that was geared toward domestic-
abuse issues or a men’s domestic-violence program.
In mid-April 2016, father had two supervised visits with the children. The visits
were not videotaped. The guardian ad litem (GAL) reported that at one visit, when father
reached for D.N.T., she “reared back” in fear and that S.S.T. pushed his father’s chin away
with his fist. The foster parents reported th at after the visits the children struggled
emotionally and had nightmares. After the April visits, the soci al worker recommended
that supervised visits with father be su spended because the children were “associating

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[father] with prior trauma they have either experienced fi rsthand or witnessed.” The
district court at that time1 suspended supervised visits.
Father’s first CD assessment from May 2016 recommended that he abstain from
alcohol and obtain outpatient treatment. That month, father graduated from college and he
started to look for a full-time job in his fiel d. He did not start a domestic-violence group
or outpatient CD treatment. In June 2016, father began seeing an individual therapist, who
also recommended that he attend domestic -violence programming. After a July 2016
meeting between father, his attorney, and th e county, the parties agreed to extend the
permanency deadlines.
Father obtained a second CD evaluation on August 1, 2016, and that assessment
recommended that he abstain fro m alcohol, attend an alcohol education class, attend
Alcoholics Anonymous (AA) meetings and ma intain contact with an AA sponsor, and
verify AA attendance with the county. The district court ordered an updated CD evaluation
on August 2, 2016, because the May assessment expired after 90 days.
On August 22, 2016, father began dome stic-violence programing and an alcohol-
use education class. In late August 2016, because father obtained employment at the
University of Minnesota in the Twin Cities, he was not able to make the 5:00 p.m. start
time at his domestic-violence group. The next month he was discharged from the program.
Father found a full-time job in St. Paul and started there in October. He began attending a
new 24-week domestic-violence group in November.

1 Two district court judges presided over this case file. The first judge recused himself on
February 10, 2017.

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On November 2, 2016, the county filed a petition to terminate father’s parental
rights. The petition alleged that father was not participating in CD or domestic-violence
programming. It sought termination of father’s parental rights on three statutory grounds:
(1) failure to comply with the duties under the parent-ch ild relationship, (2) failure to
correct conditions that led to the out-of-home placement, and (3) that the minor children
are neglected and in foster care.
Later in November, father completed a 16- hour alcohol-use education program, as
recommended in his second CD assessment.
In January 2017, father had three supervised visits with the children, the first since
April 2016. The first visit, which was videot aped, occurred on January 6 and the social
worker was present. The social worker reported that the children were “reluctant” and that
affection from father was not reciprocated. She criticized father as being controlling and
stated he did not respect the children’s bou ndaries. After the visit, the foster parents
reported that S.S.T. was screaming the entire way home, and that for several days the
children had night terrors, were refusing to eat normally, and were having “meltdowns.”
Father also had a supervised visit on January 13, 2017. A family therapist observed
the meeting in order to complete a parenting assessment. The therapist opined in her report
that the children were afraid of their father, and that they were “traumatized” by their two-
hour visit with him. The therapist wrote that father “does not demonstrate the capacity to
successfully parent,” and she recommended that permanency should be established outside
of his custody. After this visit, the fost er parents videotaped and recorded several
“meltdowns” of the children crying and screaming after they visited with father.

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Father and the children again had a videotaped supervised visit on January 20. The
social worker and an early childhood therapist were present. The early childhood therapist
stated that the children hesita ted to interact with father and would not make eye contact
with him. She wrote in a report that D.N.T. was “terrified” when father attempted to play
with a small monster figure and that the children were afraid of their father. The social
worker reported that the children’s negative behaviors occu rred after these visits as well.
Visitations were again suspended.
A six-day termination-of-parental-rights (TPR) trial commenced on May 16, 2017.
The main issues at trial concerned whether father: (1) complied with the CD programming
in his case plan, (2) complied with the domestic-violence pr ogramming in his case plan,
(3) could successfully parent the children, and (4) was the source of past trauma explaining
the children’s adverse behaviors after supervised visits.
On July 20, 2017, the district court denied the county’s petition to terminate father’s
parental rights, concluding that it did not prove any of the statutory bases for termination
of parental rights by clear and convincing evidence.
The county now appeals.
D E C I S I O N
I. Compliance with the Duties Imposed by the Parent-Child Relationship
The county argues that the district court erred in its determination that clear and
convincing evidence did not exist to show that father did not or could not comply with the
duties imposed on him by the parent and child relationship.

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On review of a district court’s determin ation on a termination of parental rights
petition, this court examines “whether the di strict court’s findings address the statutory
criteria and whether the district court’s findings are supported by substantial evidence and
are not clearly erroneous.” In re Welfare of Children of S.E.P. , 744 N.W.2d 381, 385
(Minn. 2008). This court reviews the district court’s determination of whether a particular
statutory basis for termination is pr esent for an abuse of discretion. In re Welfare of
Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), review denied (Minn. Jan. 6,
2012). A finding is clearly erro neous if it is “manifestly c ontrary to the weight of the
evidence or not reasonably supported by the evidence as a whole.” In re Welfare of
Children of K.S.F., 823 N.W.2d 656, 665 (Minn. App. 2012). We will not set aside factual
findings unless a review of the entire record leaves us with a “definite and firm conviction
that a mistake has been made.” Matter of Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn.
App. 1996).
The burden of proof is on the petitioner an d “is subject to the presumption that a
natural parent is a fit and suitable person to be entrusted with the care of a child.” J. R.B.,
805 N.W.2d at 901-02 (citation omitted). The evidence relati ng to the termination must
address the conditions that existed at the time of trial. Id. “Considerable deference is due
to the district court’s decision because a district court is in a superior position to assess the
credibility of witnesses.” In re Welfare of Children of B.M., 845 N.W.2d 558, 563 (Minn.
App. 2014) (citation omitted).
For a district court to terminate parental rights, one statutory ground for termination
must be supported by clear a nd convincing evidence, and termination must also be in the

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child’s best interests. Id. at 562-63. One such statutory gr ound allows a district court to
terminate parental rights when the parent “has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon that parent by the parent and
child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(2) (2016). To terminate parental
rights under this statutory basis the district court must find that “at the time of termination,
the parent is not presently able and willin g to assume his resp onsibilities and that the
parent’s neglect of these duties will continue for a prolonged, indeterminate period.” In re
Welfare of Child of J.K.T., 814 N.W.2d 76, 90 (Minn. App. 2012) (quotation omitted).
The district court determined that although it was “far from certain that [father] will
ever be able to demonstrate that he has capability to parent the children,” the evidence was
not sufficient to support termin ation on this basis. The c ounty argues that the district
court’s findings regarding father’s ability to parent his children are clearly erroneous, and
manifestly contrary to the weight of evidence, which sh ows that father “has not
demonstrated and may never demonstrate an ability to parent his children.”
Here, the record contains conflicting eviden ce regarding father’s present ability to
parent the children and whether any such inability will be for a “prolonged, indeterminate
period.” For example, the family therapist opined that father has a “limited understanding
of [the children’s] immediate and long-term needs” due to their medical and mental-health
issues requiring numerous therapies and appoi ntments. She thought father will have
difficulty bringing the children to appointments because he feels like he cannot miss work,
has had difficulty in keeping his own appointments, and has shown himself to be a “rigid
and paternalistic” person and highly resistant to criticism. The family therapist was not

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confident that father could incorporate any pa renting skills taught to him, and she opined
that he “did not demonstrate th e capacity to successfully pare nt,” that the children were
“afraid of their father,” and that they were “traumatized” by their visits with him.
But conflicting evidence also existed. For example, father testified that he has full-
time employment with benefits that would allow him to take multiple sick days or use his
vacation to take his children to medical appoin tments. Father agreed that family therapy
would be important and time consuming, requiring him to take work off. Father also
wished to engage in play therapy with his son. The family therapist admitted that father’s
strengths were that he was ac tive, engaged, wants to be a ffectionate and nurturing, is
working full time, and wants the children to be clean and well fed. She also stated that the
children had the ability to form attachments. Finally, th e county had not provided father
with parenting classes at the time of the TPR trial.
Additionally, the county points to the professionals’ observations at the April 2016
and January 2017 visitations that the children were fearful of father during visits, and
argues this is evidence that father has “n eglected the children’s psychological and
emotional needs.” Based on the family therapist’s parenting assessment, the county argues
that the evidence shows that father is “unable to read the cues of his children, including the
signs of distress” and this shows father has neglected to comply with his parental duties.
As for the professionals’ observations at the April 2016 and January 2017
visitations, the district court generally fou nd their accounts not credible. Regarding the
first visit in January 2017, the district cour t was “completely mystified” that the social
worker’s description of the children being “r eluctant and reserved ” about engaging with

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father and not reciprocating a ffection did not accord with th e court’s impression. After
viewing the video, the district court observe d the children and father being appropriately
affectionate with each other, and father being attentive, polite, and fri endly. The district
court did not credit the family therapist’s account of the second January 2017 visitation
and some of her criticism of father’s parenting. As for the third January 2017 visit, based
on the district court’s own obs ervation of the video, it did not credit the early childhood
therapist’s account of D.N.T. being “terrified” during one incident with father, or the social
worker’s account that father was “controlling,” “micro-managing” and not respecting the
children’s boundaries. The district court stated that it was “hard-pressed to be critical in
any way” of father’s behaviors.
Finally, the county points to evidence in the record showing the children’s adverse
behaviors after visitation with their father, as well as the foster parents’ and the social
worker’s reports of the children regressing after visitations with father.
But the evidence was unclear as to whether it was fath er who had traumatized the
children in the past, causing these reactions. The district court did not credit mother’s
allegations of domestic assau lt regarding father and found little evidence that father
engaged in “trauma-inducing” behaviors prior to the CHIPS proceeding. It also found that
by the spring of 2015 there was no evidence the children suffered from posttraumatic stress,
which is significant because afte r that point father had limited contact with the children.
Instead, the district court fo und that, from mid-November 20 15 to the time the children
went into protective care, they were exposed to domestic abuse and methamphetamine use
when they lived with mother. Also, reports that the children suffered a setback after their

12
April 2016 visits with father were contradi cted by other reports that the children were
already dysregulated due to recent methampheta mine exposure. The district court had a
basis in the record to not credit reports that the children were fea rful of father at the
videotaped visitations and to conclude that any attempt to link the children’s behavior after
the visits with any past trauma caused by father was “speculative.”
The county argues the district court’s fi ndings were erroneous because (1) the
professionals were in a better position to observe faces and feelings during the videotaped
visits, and (2) the district court did not have videotapes of the Ap ril 2016 visits or the
second visit in January 2017. While it is true the district court did not view the visitations
not videotaped, the district court chose not to credit those descriptions due to the disparity
between its own observations of the videotap ed visits and the professionals’ impressions.
After reviewing the visitation videos, we are persuaded that the district court’s findings
and credibility determinations have a basis in the record. A reviewing court defers to the
district court’s credibility determinations because it is in a “superior position to assess the
credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).
Additionally, the county argues that the district court erred in its findings because it
(1) attributed the GAL’s observation about the children being traumatized to the wrong
video clip, and (2) determined that father may have appeared like mother’s boyfriend and
that the children were confusing the two. But even assuming error, the county must still
demonstrate that the error was prejudicial. In re Welfare of D.J.N., 568 N.W.2d 170, 176
(Minn. App. 1997) (finding error in a juveni le-protection case but not reversing because
appellant was not prejudiced). Here, any such error was harmless. The district court made

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extensive findings regarding the videotaped visits. Its findings were made in contrast not
only to the GAL’s reports, but also to the reports of the social worker, family therapist, and
early childhood therapist. As for mother’s boyfriend’s appearance, the district court’s point
was that it could just as well speculate on th e source of the children’s trauma. It found
“overwhelming evidence” that mother engage d in trauma-inducing behaviors prior to the
CHIPS proceeding. Disregarding the similarity in appearances, the record contains ample
evidence supporting the district court’s findings that it was unclear whether father was the
source of the children’s trauma.
Appellant relies on J.K.T., 814 N.W.2d at 90, to argue that the district court’s finding
that father “may never demons trate an ability to parent” de monstrates that he was not
presently able to assume his pa rental responsibilities. But in J.K.T., the evidence
established that the parent “repeatedly faile d to fulfill the exacting demands” of a child’s
complex medical needs by refusing to obtain a court-ordered therapeutic device for the
child, not following safety precautions that could have been fatal, and failing to cooperate
with in-house services. Id. at 90-91. In contrast, at the time of the TPR trial, father (1) had
stable housing, (2) was employed full time, (3) had substantially engaged in his case plan
by completing an alcohol-use education class and domestic-violence group, and (4) had
negative UAs for over one year. Father attended supervised visitations in April 2016 and
January 2017, but visits were suspended twice, wrongly in the district court’s
determination, preventing father from building attachment with the children and obtaining
parenting skills. Therefore, the district co urt did not abuse its di scretion by ultimately
concluding that appellant did not prove by clear and convinci ng evidence that father was

14
not able and willing to assume parental re sponsibilities and that any such inability would
continue for a “prolonged, indeterminate period.” Id. at 90.
In sum, the district court’s findings and conclusion are based on credibility
determinations, and its interpretation of the record is reasonable and not against the weight
of the evidence. Because the evidence was conflicting, we are not left with a firm
conviction that a mistak e was made. The district court did not abuse its discretion in
denying the petition on this statutory basis.
II. Correction of Conditions Leading to Foster Care
The county argues that clear and convincing evidence sh ows that father failed to
correct the conditions leading to the children’s placement in foster care. When in a child’s
best interest, a district court may terminate parental rights when “following the child’s
placement out of the home, reasonable efforts, under the direction of the court, have failed
to correct the conditions leading to the child’s placement.” Minn. Stat. § 260C.301, subd.
1(b)(5) (2016). A presumption is created th at reasonable efforts have failed when: (1) a
child has resided outside the home for a cu mulative period of 12 months within the
preceding 22 months, (2) the district court approved an out-of-home placement plan, (3) the
conditions leading to the out-of-home 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., subd. 1(b)(5)(i)-(iv).
The parties do not dispute that the children resided ou tside of the home for more
than 12 months before trial or that the district court approved an out-of-home placement

15
plan. The parties do dispute whether the coun ty provided reasonable efforts and whether
father corrected the conditions leading to foster care.
Reasonable Efforts
Subject to several exceptions that are not applicable here, the social services agency
must make “reasonable efforts” to rehabilitate the parent and reunite the family before a
district court can order an involuntary term ination of parental rights. Minn. Stat.
§ 260C.301, subd. 1(b)(5). “Reasonable efforts encompass more than ju st a case plan.”
J.K.T., 814 N.W.2d at 88. Such efforts are defined as “the exercise of due diligence by the
responsible social services ag ency to use culturally appropria te and available services to
meet the needs of the child and the child’s family.” Minn. Stat. § 260.012(f) (2016). “The
county’s efforts must be aimed at alleviating the conditions that gave rise to out-of-home
placement, and they must conform to the problems presented.” J.K.T., 814 N.W.2d at 88.
When determining whether reasonable efforts have been made, a district court shall
consider whether services to the child and family were: (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 circumstances. Minn. Stat. § 260.012(h) (2016).2

2 Reasonable-efforts findings are required in a TPR order pursuant to Minn. Stat.
§§ 260.012(h), 260C.301, subd. 8 (2016). The district court never made factual findings
explicitly addressing whether the county provi ded reasonable efforts. We are puzzled by
the court’s conclusion of law stating that the county “has not proven by clear and
convincing evidence th at following the children’s being put into foster care, [father]—
despite having been assisted by reasonable efforts by [the county] under the direction of
the court—has failed to correct the conditions.” (Emphasis added.) It is unclear whether
this is a finding that the county made reason able efforts or a statement of the applicable

16
Here, the district court in its TPR order implicitly found that the county’s efforts fell
short. Its order implies that the county’s ac tions advocating the suspension of supervised
visitation in April 2016 and January 20 17 were unreasonable because the county
erroneously believed that father was the ca use of the children’s trauma and adverse
behaviors after visits. The dist rict court was highly critical of the county’s acceptance of
mother’s claims that father domestically assaulted her, because mother “has a proclivity to
make all kinds of outrageously false claims.” According to the district court, it should have
been obvious to the co unty from the start of the case th at almost any claim that mother
made should be viewed with skepticism. The district court also fo und that the county’s
erroneous belief that father had a 0.37 breath test caused the county to believe mother’s
accounts alleging domestic abuse over fath er’s accounts and was a large reason why the
county afforded father only a few visits with the children, and that the county conveyed
this wrong information to every assessor with whom father met, significantly affecting the
assessors’ views of father.
The court determined that father’s visi tation should not have been suspended
because “the circumstances were not compelling enough.” The district court believed that

law. In such a case, remand for additional fi ndings or clarificati on may be a ppropriate
because appellate courts will not consider an i ssue “not passed on by the [district] court,”
even when raised below. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). But, as
explained, the district court’s order as a whole implies that the county’s efforts were not
reasonable, and it gives specific examples of where the county fell short. Because the
district court made findings that concerned th e county’s efforts, the parties briefed this
court on the issue, and remanding for add itional findings would unduly extend the
timeframe in a case where the children need permanency, we will review the reasonable-
efforts issue on appeal.

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the county should have provided father “the ongoing opportunity to reunite and build
attachments with the children,” and suspending visitations was “going to all but assure that
[father] was never going to build an attachment with his children.”
The implication in the district court’s orde r is that suspension of the visits was not
relevant to the safety and pr otection of the children, and di d not meet the needs of the
family. Furthermore, by not directing father to parenting classes or therapy visits between
father and the children, the c ounty’s efforts were not “aimed at alleviating the conditions
that gave rise to out-of-home placement,” or conforming to the problems presented. J.K.T.,
814 N.W.2d at 88.
In short, there is a basis in the record to conclude that the county’s efforts to
rehabilitate father and reunite the family were not reasonable.
Failure to Correct Conditions
Even assuming that the county made reasona ble efforts, we are not convinced that
the district court abused its discretion in concluding that the county did not show by clear
and convincing evidence that father failed to correct the conditions leading to out-of-home
placement.
A presumption is created that reasonable ef forts have failed when a parent fails to
correct the conditions leading to the out-of-home placement. Minn. Stat. § 260C.301, subd.
1(b)(5)(iii). Furthermore, “[i]t is presumed that conditions leading to a child’s out-of-home
placement have not been correct ed upon a showing that the parent or parents have not
substantially complied with the court’s orders and a reasonable case plan.” Id. However,

18
the converse—substantial compliance with a case plan showing a correction of
conditions—is not true. J.K.T., 814 N.W.2d at 89.
The conditions related to father that le d to the children’s out -of-home placement
were reports of his alcohol abuse and domestic violence. The county argues that father
failed to correct these conditions and that the district cour t failed to make any findings
related to the components of father’s case plan and whether he complied with or completed
the plan. However, the district court found that father took substantial steps to address his
chemical use. This finding is not clearly erroneous because (1) no evidence existed that
father used alcohol after April 1, 2016, more than a year before trial; and (2) father
completed an alcohol-use education program, as recommended. While father’s compliance
with the CD portions of his case plan were not perfect, the record su pports a finding that
he substantially complied with his case plan and that he corrected his alcohol-use problems.
The district court also found that father took substantial steps toward addressing his
domestic-violence issues. It found that, even though mother’s al legations were “very
questionable,” father cooperated and completed a 24-week domestic-violence intervention
program. While the level of father’s coope ration with the programming was disputed at
trial, father presented eviden ce that he was engaged in the group. The district court’s
finding regarding the domestic-violence programming is not clearly erroneous as it had a
basis in the record.
The county argues that the district court erred as a matter of law in concluding that
father has not “failed so dismally as to warrant that his parental rights should be
terminated.” The county is correct that not being a “dismal failure” at completing a case

19
plan is not the legal standard in a TPR case—even substantial compliance with a case plan
may not be enough to avoid termination. J.K.T., 814 N.W.2d at 89. Furthermore, “[t]he
critical issue is not whether the parent forma lly complied with the ca se plan, but rather
whether the parent is presently able to assume the responsibilities of caring for the child.”
Id. (emphasis added). On this point, the district court determined that it had “great concerns
about whether [father] will ever be able to demonstrate the ability to successfully parent
the children.” But having a great concern about whether a parent will successfully parent
in the future is not necessari ly proof by clear and convincing evidence that the parent is
unable to assume the responsibilities of caring for a child.
We read the district court’s order as a whole to mean that the county did not provide
clear and convincing evidence th at father was unable to assume parental responsibilities
and that because father’s contact with the children was suspended in error, going forward
with the CHIPS proceeding, father will need to demonstr ate this ability. See Minn. Stat.
§ 206C.312 (providing that when a court denies a petition to terminate parental rights, it
need not immediately return the children home and the children may be re-adjudicated
CHIPS).
Because evidence in the record exists showing that father made substantial steps in
addressing concerns regarding his alcohol use and domestic-violence issues, the district
court did not abuse its discretion in concluding that the county did not prove by clear and
convincing evidence that father failed to correct the co nditions leading to the children’s
placement in foster care.

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III. Neglected and in Foster Care
The county argues that clear and convincing evidence exists that father’s parental
rights should be terminated because the children are neglected and in foster care.
When in the best interest of the children, a district court may terminate parental
rights if the children are “neg lected and in foster care.” Minn. Stat. § 260C.301, subd.
1(b)(8) (2016). “Neglected and in foster care” means a child:
(1) who has been placed in foster care by court 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 faile d to make reasonable efforts
to adjust their 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). In determining whether a child is “neglected and
in foster care” a district court must consider:
(1) the length of time the child has been in foster care;
(2) the effort the parent has made to adjust
circumstances, conduct, or conditions that necessitates the
removal of the child to make it in the child’s best interest to be
returned to the parent’s hom e in the foreseeable future,
including the use of rehabilitati ve services offered to the
parent;
(3) whether the parent has vi sited the chil d within the
three months preceding the filing of the petition, unless . . .
good cause prevented the parent from visiting the child or it
was not in the best interests of the child to be visited by the
parent;
(4) the maintenance of regular contact or
communication with the agen cy or person temporarily
responsible for the child;
(5) the appropriateness a nd adequacy of services
provided or offered to the parent to facilitate a reunion;

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(6) whether additional services would be likely to bring
about lasting parental adjustment enabling a return of the child
to the parent within an ascertainable period of time, whether
the services have been offered to the parent, or, if services were
not offered, the reasons they were not offered; and
(7) the nature of the efforts made by the responsible
social services agency to rehabilitate and reunite the family and
whether the efforts were reasonable.

Minn. Stat. § 260C.163, subd. 9 (2016). A court need not specifically mention each factor
so long as its findings show consideration of them. In re Welfare of J.S., 470 N.W.2d 697,
704 (Minn. App. 1991), review denied (Minn. July 24, 1991).
The district court’s extensive findings touc h on these factors. On the first factor,
the fact that the children were in foster care nearing 16 months by the time of the TPR trial
weighs in favor of a neglect finding. Seco nd, while the record shows that father was
difficult and at times uncooperative, evidence al so exists that by the time of trial father
gave a substantial effort at adjusting the circumstances, conduct, or conditions that
necessitated the removal of the children by abstaining from alcohol and attending various
programming. Third, father had limited visitation of the children because visitations were
suspended. Fourth, father frequently communi cated with both the social worker and the
GAL about his case and the children. Fifth, the district court found that supervised visits
should not have been suspended because th e county’s belief that father caused the
children’s trauma was speculative. Sixth, fa ther expressed a desire to attend parenting
courses and attend S.S.T.’s therapy, and thes e services could enable reunification in an
ascertainable amount of time. Seventh, as previously discu ssed, some of the county’s

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efforts at reunification were not reasonable because father was prevented from having
supervised visits with the children.
On balance, the factors show that the dist rict court did not abuse its discretion in
determining that the evidence was not clear and convincing that the children were neglected
and in foster care. The evid ence was conflicting as to whet her father’s “circumstances,
condition, or conduct are such that the child[ren] cannot be returned to [him],” and evidence
exists showing that father made efforts to “adjust [his] circ umstances, condition or
conduct.”
While we affirm the district court’s orde r, we are concerned that the TPR trial and
order in this case occurred outside of the permanency timelines provided by rule and
statute. See Minn. Stat. §§ 260C.503, .507, .509, . 515 (2016) (providing an admit/deny
hearing must occur by 12 months after the children are removed from home; TPR trial must
commence 60 days after admit/d eny hearing, and findings and adjudication must occur
after 15 days of the c onclusion of testimony); accord Minn. R. Juv. Prot. P. 4.03, subd.
3(c), 33.05, subd. 2, 34.02, subd. 1(b), 39.02, 39.05. The children are young in this case
and have spent a large portion of their lives outside of the home. Courts at all times must
be aware of these deadlines and strive to follow them.
Affirmed.