A17-1514

This opinion will be unpublished and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
A17-1513
A17-1514

In the Matter of the Welfare of the Children of:
B. K. (n/k/a B. K.), M. K. and R. D., Parents.

Filed March 5, 2018
Affirmed
Schellhas, Judge

Steele County District Court
File Nos. 74-JV-17-304, 74-JV-17-300

B. Steven Messick, J. Scott Braden, P.A., Faribault, Minnesota (for appellant B.K.)

Joel D. Eaton, Eaton Law Office, Owatonna, Minnesota (for appellant M.K.)

Daniel A. McIntosh, Steele Co unty Attorney, James S. Cole, Assistan t County Attorney,
Owatonna, Minnesota (for respondent Minnesota Prairie County Alliance)

Julie A. Nelson, Owatonna, Minnesota (guardian ad litem)

Considered and decided by Reyes, Presiding Judge; Sc hellhas, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
In this consolidated juvenile-protection appeal, appellant-father argues that the district
erred by terminating his parental rights because the r ecord lacks clea r and convincing
evidence that he is a palpably unfit parent, that he failed to correct the conditions leading to
the out-of-home placement, that he failed to satisfy his parental duties, and that termination

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of his parental rights is not in the child’s best interests. A ppellant-mother argues that the
district court abused its discretion by denying her motions for a new trial because she received
ineffective assistance of counsel. She also argues that the district court clearly erred by finding
that the county made reasonable efforts to place one of the children with a relative. We affirm.
FACTS
Appellant B.K. (mother) is the mother of N.A.D., born in April 2006, and B.I.K.,
born in July 2015. Appellant M.K. (father) is the father of B .I.K. R.D. is N.A.D.’s father.
Mother and father were not married until after B.I.K. was born.
At the time of B.I.K.’s birth, both the child and mother tested positive for
methamphetamine. B.I.K. demonstrated neonatal abstinence syndrome with jitteriness that
was recognized by both Owaton na and Mayo hospitals. Alth ough mother initially denied
using methamphetamine, claiming that the positive test resulted from her use of Sudafed,
mother later admitted to Dr. Arne Graff, who consulted on B.I.K. at the Mayo Clinic
Hospital, that she had “use d methamphetamines through th e pregnancy.” Dr. Graff’s
report, following his consultation on B.I.K., expressed concern for the child remaining with
mother in light of her positive test for methamphetamine, and a previous determination of
medical neglect regarding a child of mother’s who died in her care.
On August 3, 2015, respond ent Minnesota Prairie County Alliance (county) filed a
petition alleging that B.I.K. was in need of protection or services (CHIPS) due to the
unwillingness of mother and fath er to follow a safety plan for the child. The parents
admitted to the CHIPS petition and agreed to follow the recommendations for mental-
health and addiction treatment. Although mother did not complete her chemical-

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dependency treatment and indi vidual therapy as ordered, the parents provided several
negative drug screens and were cooperative with the county in allowing them to visit the
home on a safety plan. As a result, the distri ct court allowed the co unty to dismiss the
CHIPS petition on April 26, 2016.
On May 29, 2016, police stopped a vehicle driven by mother because the vehicle
had expired license plates. In addition to mother, thre e male passengers and B.I.K.
occupied the vehicle. The front-seat passenge r had an outstanding arrest warrant, and a
search of his person revealed methamphetamine and a scale. In the backseat of the vehicle
near B.I.K., police discovered drug paraphernalia, a machete, and a sheathed knife.
On June 22, 2016, the county filed a CH IPS petition as to B.I.K. The county also
filed a related CHIPS petition as to N.A.D., and the district court ordered that both children
be placed in foster care. The court adjudicat ed the children CHIPS on August 3, 2016, at
which time father and mother admitted that their behavior, condition, or environment is
such to be injurious or dang erous to the children. The pare nts also agreed that their
chemical-dependency and mental-health issues, contributed to the need for protection, and
that services as to the chemical dependency and mental health must be followed as part of
the CHIPS proceedings. The district court subsequently adopted an out-of-home placement
plan, which required father and mother to (1 ) complete a rule-25 assessment and follow
recommendations for treatment; (2) address thei r mental-health needs; and (3) not use or
possess drugs or alcohol.
During the next few months, father and moth er consistently either refused to provide
urine samples; provided urine samples that were diluted, too small to test, or not human

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urine; or provided samples th at tested positive for methamphe tamines. On February 10,
2017, the district court conducted a perm anent-placement-determination hearing and
thereafter ordered the county to file a petiti on to terminate mother and father’s parental
rights to B.I.K. The county co mplied with the district cour t’s directives and filed the
petition, along with a permanency petition regarding N.A.D.
Following a trial on the petition to termin ate parental rights, the district court
concluded, with respect to B.I.K., that th e county had proved by clear and convincing
evidence that (1) father and mother substantia lly, continuously, or repeatedly refused or
neglected to comply with the duties imposed upon them by the parent and child
relationship; (2) father and mother were palpably unfit to be parties to the parent and child
relationship; and (3) reasonabl e efforts by the county had fa iled to correct the conditions
leading to the out-of-home plac ement. The district court also determined that the best
interests of B.I.K. are served by the termination of mother and father’s parental rights. The
district court therefore gran ted the county’s petition to term inate mother and father’s
parental right to B.I.K. under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), and (5) (2016).
The district court also granted the count y’s petition to transfer legal and physical
custody of N.A.D. to R.D.’s sister, K.H. The district court concluded that there is “clear
and convincing evidence that [mother] is palpably unfit to be a party to the parent and child
relationship and will continue for the reasonabl y foreseeable future to be unable to care
appropriately for the ongoing physical, mental, and emotional needs of [N.A.D.].” The
district court further determined that the “best interests of [N.A.D.] are served by transfer
of legal and physical custody to [K.H.].”

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Mother filed motions for a new trial under Minn. R. Juv. Prot. P. 45.06, in the cases
involving B.I.K. and N.A.D. The district court denied the motions.
These consolidated appeals follow. 1 Mother and father challenge the order
terminating their parental rights to B.I.K., a nd mother challenges the order transferring
custody of N.A.D. to K.H.
D E C I S I O N
I. Termination of father’s parental rights
Father challenges the district court’s decision to terminate his parental rights,
arguing that (A) the county did not prove by clear and convincing evidence that a statutory
basis supports termination of his parental rights; and (B) termination of his parental rights
is not in B.I.K.’s best interests.
A natural parent is presumptively a “fit and suitable person to be entrusted with the
care of his or her child,” and “[o]rdinarily, it is in the best interest of a child to be in the
custody of his or her natural parents.” In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn.
1995). As a result, parental rights may be terminated “only for grave and weighty reasons.”
In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).
On appeal from a district court’s decision to terminate parental rights, we review
the court’s factual findings for clear error. In re Welfare of Children of T.R. , 750 N.W.2d
656, 660 (Minn. 2008). But the ultimate termin ation decision is reviewed for an abuse of

1 This court designated father a “co-appellant ” after he filed a notice of related appeal
challenging the order terminating his parental rights to B.I.K.

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discretion. See In re Welfare of Child of R.D.L. , 853 N.W.2d 127, 1 36–37 (Minn. 2014)
(explaining that termination of parental rights is “always di scretionary” with the district
court).
A. Statutory basis to terminate
Parental rights may be terminated if at least one of nine statutory bases is proved by
clear and convincing evidence, Minn. Stat. § 260C.301, subd. 1(b), and the district court
determines that termination is in the children’s best interests, R.D.L., 853 N.W.2d at 137.
“If statutory grounds for termination exist and termination is in the best interests of the
child, the appellate court then determines whether there is clear and convincing evidence
that the county made reasonable efforts to reunite the family.” In re Children of T.A.A., 702
N.W.2d 703, 708 (Minn. 2005).
Here, the district court concluded that clear and convinci ng evidence supports a
termination of father’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), and
(5). Father challenges the conclusion, arguing that clear and convincing evidence does not
support the termination of his parental rights under these three statutory bases.
A district court may terminate parental right s if it finds that “a parent is palpably
unfit to be a party to the parent and child relationship.” Minn. St at. § 260C.301, subd.
1(b)(4). To satisfy its burden of proving palpable unfitne ss, the county must prove “a
consistent pattern of specific conduct or sp ecific conditions existing at the time of the
hearing that, it appears, will co ntinue for a prolonged, inde finite period and that are
permanently detrimental to the welfare of the child.” T.R., 750 N.W.2d at 661.

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The district court concluded that there “is clear and convincing evidence that [father
is] palpably unfit to be a party to the parent and child relationship and will continue for the
reasonably foreseeable future to be unable to care appropriately for the ongoing physical,
mental, and emotional needs of the child.” The court reached this conclusion after finding
that: father “suffers from a severe addic tion to methamphetamine”; that his “chemical
dependency issues create[] agitati on, tension, and chaos in this family system”; and that
although father has completed the rule-25 assessment and “is engaged in treatment,” he has
“continued to use methamphetamine throughout the case,” including during his treatment
program, which demonstrates his failure to address his methamphetamine addiction.
Father argues that the re cord lacks evidence of palpable unfitness because he
demonstrated that he was “capable of prov iding food, clothing, and shelter for B.I.K.”
Although acknowledging hi s abuse of controlled substances , father argues that he “was
actively participating in outpatient treatment to address his chemical use.” Father further
argues that: no causal co nnection exists between either pa rent’s drug use and his and her
ability to care for B.I.K., that th e record lacks evidence of ho w father’s drug use affected
his ability to care for B.I.K. or how father was affected by drug use during his visits with
B.I.K., and that the record lacks evidence of how his drug use affected his relationship with
B.I.K. We are not persuaded.
Father admitted at trial that he has st ruggled with methamphe tamine use for “20-
some years.” And despite his argument to the contrary, the record indicates that father’s
drug use has directly affected his ability to parent B.I.K. B.I.K. tested positive for
methamphetamine when he was born, which reflects father’s inability to intervene in

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mother’s dependence on methamphetamine. And du ring visits with B .I.K., when mother
often became agitated and frustrate d, father did nothi ng to defuse the situation. Instead,
father became withdrawn and su ccumbed to mother’s directiv es. This evidence supports
the district court’s findings that father is “p sychologically attached to [mother] to such a
degree that he will do what [mother] wants him to do, even if it is not in the child’s best
interests.” Father’s willingness to put mother’s wishes ahead of B.I.K.’s needs supports a
finding of palpable unfitness. The record also shows that father’s attachment to mother and
continued substance abuse has placed B.I.K. in dangerous situations and placed the child’s
health and well-being at risk. The record reflects that several months after B.I.K. was born,
B.I.K. was in a car driven by mother that was occupied by three males, one of whom had
an outstanding arrest warrant. That male had methamphetamine and a scale on his person,
and police discovered drug paraphernalia, a machete, and a sheathed knife in the back seat
of the car near B.I.K.
Following the stop of the ca r that mother drove, a hair follicle from B.I.K. tested
positive for methamphetamine. According to Dr. Graff, a positive test from a hair follicle
taken from a child more than a year after the child’s birt h represents recent exposure to
methamphetamine, not exposure to the drug during pregnancy. This evidence demonstrates
B.I.K.’s exposure to methamphetamine while he was in father’s ca re. Although father
completed the rule-25 assessment and began treatment as ordered by the district court, he
has continued to use methamphetamine throughout this case. In fact, father admitted at trial
that he has relapsed during treatment and oc casionally refused to provide test samples,
knowing that his refusal would be “taken as a positive.” Father clearly has a long-standing,

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unresolved chemical-dependency problem that renders him unable to maintain a safe and
stable home for B.I.K. for the reasonably fo reseeable future. Acco rdingly, clear and
convincing evidence supports the district court’s determination that father is palpably unfit
to be a party to the parent and child rela tionship under Minn. St at. § 260C.301, subd.
1(b)(4). Because clear and convincing evidence supports one of the three statutory grounds
on which father’s parental rights were termin ated, we decline to di scuss the second and
third statutory grounds. See In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999)
(“Only one [statutory] criterion needs to be proven to support termination.”).
B. Best interests
Whether termination of parental rights is in the children’s best interests is “the
paramount consideration.” Minn. Stat. § 260C.301, subd. 7 (2016); In re Welfare of
Children of J.R.B., 805 N.W.2d 895, 902 (Minn. App. 2011), review denied (Minn. Jan. 6,
2012). In considering the best interests of a child, the district court must balance three
factors: “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s
interest in preserving the pare nt-child relationship; and (3) any competing interest of the
child.” In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. A pp. 1992). Competing interests
may include “a stable environment [and] health considerations.” Id. at 4. An abuse-of-
discretion standard is applied to a district court’s determination concerning the children’s
best interests. J.R.B., 805 N.W.2d at 905.
Father argues that the district court e rred by finding that clear and convincing
evidence supports a determination that termination of father’s parental rights is in B.I.K.’s
best interests because there “was no testimony that B.I.K. had any long-term effects from

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[father’s] drug use,” and father has “the abil ity to provide for [B.I.K.’s] physical, mental,
and emotional needs at the present time and in the foreseeable future.” But to support its
determination that termination of father’s parental rights is in B.I.K.’s best interests, the
district court found that B.I.K. is one year old, that he has no “m eaningful bond” with
father, and that father cannot provide B.I.K. with the opportunity to “reach his full and
complete physical well-being, emotional deve lopment, and educational potential.” The
district court also found that father has failed to provide, nor likely will provide, “a stable
and safe home for [B.I.K.] free of illegal chemical use and crime.” Finally, the district court
found that father’s “actions have not demonstrated a focused desire to be an adequate parent
to the child.”
The record supports the district court’s findings. Despite claiming that he wants to
be a part of the child’s life, father has repe atedly failed to comply with the court-ordered
case plan by continuing to use methamphetamine. Moreover, father’s controlled-substance
abuse has negatively affected the health of B.I.K., which is evid enced by the child’s
positive test for methamphetamine while in fath er’s care. In light of father’s continued
methamphetamine abuse, and the activity connect ed to father and mother’s drug use, the
record supports the district court’s finding that father is unable to provide a safe and stable
home for B.I.K. that is free from chemical use and crime. In addition, the guardian ad litem
testified that B.I.K. is growing and developing in his new home and that it would not be in
B.I.K.’s best interests to be returned to father’s care. The district court found this testimony
to be credible and we defer to the di strict court’s credibility determinations. See In re
Welfare of L.A.F. , 554 N.W.2d 393, 396 (Minn. 1996) (stating that this court gives

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considerable deference to the district court’s decision to terminate a person’s parental rights
because the “district court is in a superior position to assess the credibility of witnesses”).
Because clear and convincing evidence supports the district court’s determination that
termination of father’s parental rights is in B.I.K.’s best interests, the district court did not
abuse its discretion by granting the county’s petition to terminate father’s parental rights.
II. Motions for a new trial
Minn. R. Juv. Prot. P. 45.04 provides se veral grounds on which a district court may
grant a new trial in juvenile-protection proceedings. We review a district court’s denial of
a motion for a new trial for an abuse of discretion. See Moorhead Econ. Dev. Auth. v. Anda,
789 N.W.2d 860, 892 (Minn. 2010). A district court abuses its discretion when it resolves
the question in a manner “that is against both logic and the facts of record.” Cisek v. Cisek,
409 N.W.2d 233, 235 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).
Mother argues that the district court a bused its discretion by denying her motions
for a new trial because her trial counsel’s ineff ectiveness deprived her of a fair trial. But
mother’s ineffective-assistance-of-counsel argument was not raised in district court. It is
well settled that appellate courts generally do not consider matters not properly argued to
and considered by the district court. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).
Because mother did not raise her ineffective-assistance-of-counsel claim in her posttrial
motion, we decline to consider her argument.
III. Reasonable efforts to place B.I.K. with a relative
Minn. Stat. § 260C.221(a) (2016) requires a county to conduct a “comprehensive”
search for suitable relatives with whom to place a child who has been removed from a

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parent’s home. The search should encompass “maternal and paternal adult relatives of the
child,” including grandparents, legal parents and guardians of the child’s siblings, and “any
other adult relatives suggested by the child’s parents.” Minn. Stat. § 260C.221(b) (2016).
This court reviews a district court’s deci sion whether a responsi ble county agency
unreasonably failed to make an adoptive placement for an abuse of discretion. See Minn.
Stat. § 260C.607, subd. 6(e) (2016) (stating that district court “may” order a relative
adoptive placement if an agency unreasonably fails to make the placement); see also In re
Welfare of Child ren of L.L.P. , 836 N.W.2d 563, 570–71 (M inn. App. 2013) (comparing
motions for adoptive placement to motions for custody modification, and concluding that
appellate court reviews district court’s determination of whether prima facie case has been
established in motion for adoptive placement for abuse of discretion).
The district court fo und that the county
has engaged in a reasonable search for relatives for placement
of the children and sending le tters to potential relatives.
[County social worker] testifie d that all suggestions made by
the parents were investigated and were either not willing to
take the children or had child protection matters of their own
and were not appropriate.

Mother challenges this finding, arguing that it is “not supported by the evidence at trial.”
She urges us to “reverse and remand the issu e of whether [the county] made reasonable
efforts to locate relative placement and to determine whether [mother’s sister] is a suitable
relative for placement.” We are not persuaded.
Morton testified that the county sent out “c lose to ten” “relativ e search letters” in
late January and early February 2017. She inve stigated some of the “follow-ups to those

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letters,” and some were inves tigated by her predecessor. As part of her investigation,
Morton talked with B.I.K.’s grandfathers, both of whom stated that “they were just not in
a position where they would be able to provide a permanent home for [B.I.K.].” Morton
also testified that she explored mother’s sister as a perman ency option, bu t that she had
“concerns” with mother’s sister due to her “child protection history.” As Morton explained,
“[w]e’re not going to put a ch ild into a home wher e there’s been—if there’s concerns in
that home about child protection issues. We wouldn’t want to subject a child to any neglect
or abuse again.”
Finally, Morton testified that her predec essor considered R. H., mother’s half-
sister’s dad’s fiancé. If believed, this evidence supports the district court’s finding that the
county engaged in a reasonable search for relatives for placement of B.I.K., including the
exploration of mother’s sister as a placement option for B .I.K. The district court found
Morton’s testimony to be credible and we defer to the district court’s credibility
determinations. See L.A.F. , 554 N.W.2d at 396 (“Consider able deference is due to the
district court’s decision [to terminate parental rights] because a district court is in a superior
position to assess the credibility of witnesses.”). The distri ct court therefore properly
determined that transfer of permanent legal a nd physical custody of B.I.K. to a relative is
not in the child’s best intere sts because the child has “no su itable relative willing to take
the child.”
Affirmed.