In the Matter of the Welfare of the Children of: S.S.H. and B.W.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This opinion will be unpublished and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
A18-0038

In the Matter of the Welfare of the Children of:
S.S.H. and B.W.R., Parents

Filed June 25, 2018
Affirmed and remanded
Bratvold, Judge

Todd County District Court
File No. 77-JV-17-662

Richard A. Ohlsen, Richard A. Ohlsen, Ltd., Brainerd, Minnesota (for appellants)

Charles G. Rasmussen, Todd County Attorney, John E. Lindemann, Assistant County
Attorney, Long Prairie, Minnesota (for respondent Todd County)

Thomas J. Nolan, Jr., Nolan Law Offices, Minneapolis, Minnesota (for guardian ad litem)

Considered and decided by Schellhas, Presiding Judge; Reilly, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellants-parents challenge the district court’s termination of their parental rights
after respondent-county provided over six years of protective services , during which time
parents were sometimes compliant , but rep eatedly relapsed into methamphetamine use .
Parents argue that we must reverse for four reasons: (a) the district court erred in
determining that additional services by respondent -county would be futile and therefore

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unreasonable under the circumstances; (b) the district court erred in its determination that
clear and convincing evidence established mother and father failed to satisfy the duties of
the parent-child relationship; (c) the district court abused its discretion in receiving hair -
follicle eviden ce without proper foundation; and (d) the district court erred in its
determination that clear and convincing evidence established termination of mother and
father’s parental rights was in the children’s best interests. We af firm the termination of
mother and father’s parental rights, but remand for the district court to review daughter’s
waiver of legal counsel.
FACTS
Appellant-mother S.S.H. (mother) and appellant -father B.W.R . (father) are the
parents of A.L.R. (daughter) (born in 2006) and J.I.R. (son) ( born in 2011). Mother and
father began their relationship in 2003 and have lived together on and off , but never
married.
The family has received protective services since 2011. Three child-in-need-of-
protection-or-services (CHIPS) cases preceded the present termination proceeding . In
August 2011, the children were adjudicated in need of protection or services after son was
born with methamphetamine in his system. Mother admitted using methamphetamine for
the first five months of her pregnancy and agre ed to monitoring by respondent Todd
County Health and Human Services (the county); mother cooperated with recommended
services. The children were placed in foster care with their maternal grandmother, D.H. By
June 2012, mother had substantially complied wi th her case plan , and the children were
returned to her custody. But only a few months later, in September 2012, the district court

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ordered out -of-home placements for the children, due to mother’s relapse and use of
methamphetamine. Mother regained custody of the children in December 2012, on the
county’s recommendation.
The district court described father’s involvement in protective services in its later
termination order. The district court found that father “ha[d] been a party throughout” the
protective care proceedings, and that father “did virtually nothing that was recommended
or outlined in his case plan nor did he actively utilize any s ervices.” Additionally, the
district court found that, in 2013, the county recommended that father’s contact with t he
children be supervised because of father’s failure to complete the recommended services,
including “anger management, couples therapy, a chemical dependency evaluation, or
parental education courses.”
In May 2014, t he children were taken into emergency protective custody for the
third time after father was arrested for fifth -degree possession of a controlled substance,
second-degree DWI test refusal, possession of drug paraphernalia, an d driving after
suspension of his driver’s license. Additionally, the county learned that mother had left the
children in D.H.’s care, was reported to be using methamphetamine, and was subject to an
arrest warrant. The court ordered protective custody and placed the children in foster care
with D.H. The district court also ordered the family to submit to hair -follicle tests. Both
parents tested positive for methamphetamine, as did son due to “secondhand exposure.”
The county initially filed a CHIPS petition, but after determining that the children
had been in out-of-home placements for over 12 months in the last five years, the county
withdrew the CHIPS petition and filed a petition to terminate parental rights (TPR) in May

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2014. Mother and father cooperated with the county, completed services, and worked
toward sobriety. I n December 2014, the county dismissed the termination petition. The
county asked for and received a court order approving the dismissal based on the parents’
cooperation with county services. In its subsequent termination order, the district court
found th at the guardian ad litem, Lori Hanson, “vehement[ly] object[ed]” to the 2014
dismissal because, if son and daughter “were to be reunified with their parents once again[,]
the past history causes concern that exposure to drugs and alc ohol would only continu e.”
The district court also found that both parents “acknowledged [during trial] that dismissal
of the 2014 TPR Petition was their ‘last chance’ and that maintaining custody of their
children depended upon them remaining drug-free.”
After the dismissal, the county continued to provide services to the family including
random drug testing, “referrals to [chemical dependency] counselors and treatment,”
“individual therapy for the children as needed,” supervised visits, and assistance with
transportation services. The parents’ file was closed in June 2015, and the county had very
little contact with the family for two years.
On June 28, 2017, the Staples Police Department received a report of a dome stic
altercation at the parent s’ home. The responding office r spoke with father, daughter, and
son. The officer described daughter, then age ten, as “very distraught”; daughter told officer
that father ha d been “verbally abusive” and called her “a b-tch and a c-nt.” In response,
father told the officer that daughter was “being one.” The officer noted that father seemed
“agitated” and “behaving as if he might be under the influence of a controlled substance.”
The officer noted the incident as a “noise issue,” but contacted father’s probation officer.

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When father met with his probation officer, he admitted methamphetamine use over
the weekend. Father also submitted to a drug test, which was positive for
methamphetamine. After learning of father’s test result, the county attempted to locate the
children, but was unable to do so for several days. Accordingly, the county obtained a court
order for parents to “produce the children for interviews” and drug testing. Mother later
testified that she and the children were on a “pre -planned vacation” and that she had
problems with her cell phone.
The family submitted to hair-follicle testing. Mother, father, and son tested positive
for methamphetamine; daughter’s test was negative. The county sought and received
protective custody of the children on August 1. On August 3, 2017, t he county filed a
petition to terminate mother and father’s parental rights. The county asserted that mother
and father’s parental rights should be terminated on the following statutory grounds: Minn.
Stat. § 260C.301, subd. 1(b)(2) (2016) ( parents failed to satisfy the duties of the parent -
child relationship); Minn. Stat. § 260C.301, subd. 1(b)(7) (father failed to register as the
children’s parent); and Minn. Stat. § 260C.301, subd. 1(b)(8) (children were neglected and
in foster care).1

1 The termination petition asserted two additional grounds for termination: Minn. Stat.
§ 260C.301, subd. 1(b)(4) (parents are palpably unfit to be a party to the parent and child
relationship) and Minn. Stat. § 260C.301, subd. 1(b)(5) (reasonable efforts failed to correct
the conditions leading to the out-of-home placement). Subsequent events led the county to
dismiss both of these grounds. In November 2017, the county determined that the children
had been in out-of-home placement for less than 12 months ov er the last five years. As a
result, the county withdrew Minn. Stat. § 260C.301, subd. 1(b)(5), as an alleged basis for
termination. At trial, the county amended the petition and withdrew Minn. Stat.
§ 260C.301, subd. 1(b)(4), as an alleged basis for termination.

6
At an emergency placement hearing on August 3, 2017, the county asked the district
court to determine that providing any further services to parents would be futile, arguing
that many services had been provided over several years and that “the parents knew what
they needed to do and what would happen in the future.” The district court granted the
county’s request and found that the county had “made reasonable efforts. ” The court also
found that “additional services at this point would be futile,” citing Min n. Stat.
§ 260.012(a) (2016). The district court concluded that the county was not required “to
develop a case plan for these parents [or] for these children.”
On August 17, 2017, mother and father requested , via certified letter, additional
county services to reunify the family. Mikayla Wolbeck, a county child protection worker
and the family’s case manager, met with mother to discuss available services and
recommended that parents submit to voluntary random drug testing. Mother told Wolbeck
that the family did not need county services, because “they were doing just fine.” Following
this meeting and before trial commenced, mother submitted to three out of ten random drug
tests; father submitted to one out of ten random drug tests.
The county also scheduled supervised visits for the children and the parents. In its
termination order, the district court found that these visits “did not go well” and that parents
“discussed inappropriate topics such as their feelings on the CHIPS case and [county]
employees in front of the children.” The district court also found that parents displayed a
“lack of effort” in responding to the children’s needs. For example, regarding daughter, the
district court found that on two o ccasions, daughter told mother she wanted “to commit
suicide or harm herself,” and on one occasion, “ [m]other did not respond.” On another

7
occasion, the district court found that daughter told mother about self -harm and al so
described her “16-year-old online ‘boyfriend’ named Pho enix who lives in Arizona.”
Mother responded that daughter should “seek support from her ‘boyfriend.’”
The termination trial took place on November 15-16, 2017. At trial, the district court
heard testimony from the following witnesses on behalf of the coun ty: Jennifer Lowe, a
county child protection worker; Lisa Grossinger, a county child protection worker;
Wolbeck, the family’s case manager; and an employee of Mid-Minnesota Drug Testing,
who testified about son’s hair-follicle test from July 2017. Addition ally, the guardian ad
litem testified that she believed parent s’ rights should be terminated because of “the
continued methamphetamine use of the parents.”
In Wolbeck’s testimony, which the district court found credible, she stated that
when the children were brought into county custody in August 2017, daughter “had lice
that was —had gone untreated and . . . [mother] had known about the lice but never
informed Todd County.” Further, other record evidence demonstrated that the children
were in need of mental health ser vices, a well -child checkup , eye appointment , dentist
appointment, and new glasses, all of which they had not been provided while in parents ’
care. The district court subsequently determined that parents “refused to secure medical
insurance for the children,” althou gh they were eligible for public health insurance , and
that children had not received necessary mental and physical health services.
The parents offered testimony from the following witnesses: mother’s supervisor
from her job at Central Lakes College; father’s mentor from Alcoholics Anonymous;
father’s probation officer; the police officer who responded to the family’s home on

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July 28; and son’s case manager and therapist. In addition, maternal grandmother, D.H.,
testified that mother and father had positive interactions with the children and were able to
comply with the duties of a parent. Also, paternal grandmother, D.S., testified that mother
and father had positive, happy interactions with the children.
Father testified that , after the incident on June 28, he had completed an updated
chemical assessment and had followed all recommendations. Father testified that he attends
Alcoholics Anonymous/Narcotics Anonymous meetings regularly, and despite his “little
slip” in June, he believes he is a good parent and able to care for his children.
Mother testified that she attends “ AA/NA, A l-Anon” meetings when she can.
Mother admitted using met hamphetamine in the home in 2014, but denied doing so in
2017. Mother testified that she is able to “provide and comply with the duties imposed
upon a parent.”
Through the testimony of several witnesses and various exhibits received by the
district court, the record evidence established that both children have special needs and
individualized education plans (IEPs). The dis trict court found that son “has behavioral
problems,” mental health issues, and struggles with “‘dysregulation,’ characterized by
hypervigilance, obsessive talking, and a general lack of control of his body and his
emotions.” The district court stated that son was removed from “mainstream school”
because he “was unable to succeed in that setting,” and now attends a “Level 4 school with
greater safety measures and service intensity.”2 The district court also noted that, although

2 Son’s therapist described a Level 4 educational setting as specializing in “emotional and
behavioral disorders.” She testified that a Level 4 setting offers “more frequent services,”

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only six years old, son has tested positive for methamphetamine three times, including at
his birth. The district court found that, following dismissal of the 2014 TPR petition, the
son’s “emotional and behavioral struggles appreciably worsened without [ the county’s]
protective supervision.”
The district court found that daughter was diagnosed with fetal alcohol syndrome
and a “generalized anxiety disorder.” And the record evidence indicated that mother
admitted she had used methamphetamine until she was three months pregnant with
daughter. Also, the district court found that mother actively used methamphetamine while
she was the “primary parent” for daughter. Record evidence portrayed daughter as
struggling with disruptive behaviors throughout the time she has received services. The
district court found that daughter’s behavioral issues sometimes made it difficult for her
paternal grandmother to spend time with her. The district court also found that daughter
had a “pattern of throwing away her homework” and that parents worked with daughter’s
teacher to manage this issue. Finally, the district court found that daughter was awarded
the student-of-the-month award, was interested in raising rabbits, enjoyed music, and was
involved in 4-H.
On December 15, 2017, the district court issued findings of fact, conclusions of law,
and ordered termination of mother and father’s parental rights to both children. The district
court found that the county had made reasonable efforts to rehabilitate the parents and
reunify the family , and future efforts would be futile. Specifically, the district court

a case manager, and “a children’s mental health case manager because the re is a more
severe emotional disturbance happening.”

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determined that the county had provided relevant services since 2011, and that there were
no services “left t o try.” The district court found that clear and convincing evidence
supported several grounds for termination: parents failed to satisfy the duties of the parent-
child relationship; father failed to register as the children’s paren t; and the children are
neglected and in foster care. The court also concluded that termination was in the children’s
best interests. Both parents appeal.
D E C I S I O N
A natural parent is generally presumed to be fit and suitable to care for his or her
children. In re P.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr.
15, 2003). We presume that it is in the children’s best interests to remain in the natural
parent’s care. Id. Nevertheless, “parental rights are not absolute” and will not be “enforced
to the detriment of the child [ren]’s welfare and happiness.” Id. (quotation omitted). This
court will affirm a district court’s termination of parental rights where there is clear and
convincing evidence that (1) the county made reasonable efforts to reunite the family, (2) a
statutory ground for termination exists , and (3) termination is in the children’s best
interests. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
We review “whether the district court’s findings address the statutory criteria and
whether the district court’s findings are supported by substantial evidence and are not
clearly erroneous.” Id. “A finding is clearly erroneous if it is either manifestly contrary to
the weight of the evidence or not reasonably supported by the evidence as a whole.” In re
Children of T.R., 750 N.W.2d 656, 660 -61 (Minn. 2008) (quotation omitted). We review
for abuse of discretion the district court’s determinations on whether a particular statutory

11
basis for terminating parental rights is present and whether termination of parental rights
is in the best interests of a child. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901,
905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012).
I. The district court did not err in its determination that the county has made
reasonable efforts to rehabilitate the parents and reunite the family and that
additional services would be futile and therefore unreasonable.

In a termination of parental rights proceeding, the district court must determine
whether the county has provided reasonable efforts to rehabilitate the parent and reunite
the child ren and parent. Children of T.R., 750 N.W.2d at 664. “Reasonable efforts at
rehabilitation are services that go beyond mere matters of form so as to include real,
genuine assistance.” In re Welfare of Children of S.W., 727 N.W.2d 144, 150 (Minn. App.
2007) (quotations omitted), review denied (Minn. Mar. 28, 2007). For efforts to be
reasonable, the services the county offers must be: (1) relevant to the safety and protection
of the child; (2) adequate to meet the needs of the child ren 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). The district court must make “specific
findings” that the county made reasonable efforts. Minn. Stat. § 260C.301, subd. 8 (2016).
Statutory requirements regarding parental rehabilitation and reunification are met if
the court determines that (1) the county made reasonable efforts; or (2) the provision of
further services is “futile and therefore unreasonable u nder the circumstances”; or
(3) reasonable efforts are not required under one of certain circumstances provided by
statute. Minn. Stat. § 260.012(h). Here, at the county’s request during an emergency
placement hearing , the district court determined that the county had made reasonable

12
efforts to rehabilitate mother and father and to reunite the family, but that no other efforts
were practical or likely to remedy the underlying problems. The court concluded that “there
are no services or efforts available which could allow the children to safely remain in the
home.”
The parents challenge the district court’s finding , arguing that, while father had a
“meth slip ” in June 2017, the responding officer was not “sufficiently” concerned to
remove the children. Moreover, they argue that from December 2014 until August 2017,
they successfully pa rented the children with no interaction by the county . The county
argues that despite extensive services provided to the parents from 2011, and even
following the 2014 termination proceedings, “ [a]ppellants [are] still using
methamphetamine—and still exposing their youngest child to methamphetamine.” The
county also argues that the parents’ continued use of drugs, after years of services, “clearly
supports the [t]rial [c]ourt’s conclusion” that further services would be futile, and therefore,
unreasonable.3
We conclude that the district court did not erroneously determine that future services
were “futile and therefore unreasonable under the circumstances.” First, the district court

3 Parents also argue that because the county withdrew Minn. Stat. § 260C.301, subd. 1(b)(5)
as a basis for termination , there was no longer a presumption that reasonable efforts had
failed, and the county was required to provide reasonable efforts to correct the conditions
leading to the children’s out -of-home placement. See Minn. Stat. § 260C.301,
subd. 1(b)(5)(i). The district court determined that it was satisfied with its previous finding
that, pursuant to Minn. Stat. § 260.012, the provision of additional services would be futile,
and therefore unreasonable. We agree with the district court that the county’s decision to
withdraw subdivision 1(b)(5) as a basis for termination does not affect the futility analysis
because the district court did not presume that reasonable efforts had failed.

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determined that the county had undertaken reasonable efforts to reunite parents and the
children. Since 2011, the county provided services and made extensive efforts to
rehabilitate and reunite the family , including use of the following services: “chemical
dependency referral, chemical dependency treatment, [Narcotics Anonymous/Alcoholics
Anonymous], random [urinalysis], parent education, individual and family therapy,
psychological evaluations, transportation, and case management.”
Further, it is not material that the responding police officer on June 28 , 2017, did
not remove the children from the home because no chemical testing had been performed at
that time, and, when testing was completed and methamphetamine use confirmed , the
children were removed. More importantly, after the district court made its futility
determination and the parents requested additional services, Wolbeck met with mother to
discuss the services available to the county in 2017. On appeal, parents argue that mother
was not “articulate enough to respond” to Wolbeck. Yet the record reflects that mother told
Wolbeck that the family did not need county services, because “they were doing just fine.”
Moreover, neither mother nor father complied with random drug testing in the months
leading up to the termination tri al. In short, the record supports the district court’s
determination that “[a]t times” the parents “accepted and cooperated with services designed
to assist the children” and “[a]t other times, the parents have declined offered services.”
Next, the district court determined that there were “no [additional] services or efforts
available which could allow the children to safely [return] home.” The district court further
explained, as follows: “without perpetual monitoring and support to ensure that the parents
are not further impairing the children’s [physical] or emotional health and development by

14
using methamphetamine or failing to take advantage of services that would assist them
with their children’s respective behavioral and emotional issues, the children cannot be
safely returned to them.”
This finding is also supported by the record. As stated, the county provided relevant
and appropriate services for almost seven years , tailored to the children’s needs and the
parents’ chemical dependency. Indeed, the district court found there were no services “left
to try.” Additionally, following detailed testimony at the termination trial, the district court
found that parents’ chemical dependency was ongoing and prevented them from providing
necessary and adequate care for the children. The parents’ long-term chemical dependency
problems, “poor prognosis for recovery,” father’s failure to engage with county services,
and mother’s failure to recognize methamphetamine use as a cause of the children’s
behavioral and mental health issues, support the district court’s futility determination.
Thus, we conclude that the district court’s determination that providing additional services
would be futile is supported by clear and convincing evidence.
II. The district court did not abuse its discretion in terminating mother and
father’s parental rights.

A district court may terminate parental rights when at least one statutory ground for
termination is supported by clear and convincing evidence and the court determines that
termination is in the children’s best interests. Minn. Stat. § 260C.301, subd. 1 (b)(1) -(9);
In re Welfare of Child of R.D.L. , 853 N.W.2d 127, 137 (Minn. 2014) . “Only one ground
must be proven for termination to be ordered.” In re Children of T.A.A., 702 N.W.2d 703,
708 (Minn. 2005). We “review the district court’s findings of the underlying or basic facts

15
for clear error, but [] review its determination of whether a particular statutory basis for
involuntarily terminating parental rights is present for an abuse of discretion.” Children of
J.R.B., 805 N.W.2d at 901. An abuse of discretion has occurred if the district court
improperly applied the law. Dobrin v. Dobrin , 569 N.W.2d 199, 202 (Minn. 1997). We
may affirm the district court’s decision to terminate parental rights if, after careful review,
we conclude that at least one statutory basis for doing so is supported by the district court’s
determinations and clear and convincing evidence. See In re Children of T.A.A. , 702
N.W.2d 703, 708 (Minn. 2005) (“Only one ground must be proven for termination to be
ordered.”).
The district court determined that parents substantially, continuously, or repeatedly
refused or neglected to comply with the ir duties as parents, within the meaning of Minn.
Stat. § 260C.301, subd. 1(b)(2). Parents argue that the county “wholly failed to prove” this
statutory basis, contending that the district court’s findings on this issue were “historical,”
and that “the only event reflecting on the parenting of either [mother or father] was the
event of June 28, 2017.” Parents downplay the June 28 event, asserting that no weapon s
were involved, daughter did not report abuse , and “some name calling” by father “was
described.” Parents argue that, since June 28, father admitted to using methamphetamine ,
responded positively to probation sanctions, complied with an updated chemical
assessment, and has actively participated in group meetings to manage his dependency.
The county argues that the children’s exposure to the parents’ continued
methamphetamine use and the parents’ related inability to provide for the children’s needs
was the primary reason for the county’s long -term involvement with the family and

16
supports the district court’s conclusion that parents have not satisfied the duties of the
parent-child relationship and are unlikely to do so in the future . The county argues that
both parents lack insight into the children’s needs and tend to blame the county for the
children’s struggles. The county also contends that both parents lack insight into how their
own chemical dependency affects the children and are unable to arti culate how they will
meet the children’s needs going forward.
Parental rights may be terminated if “the parent has substantially, continuously, or
repeatedly refused or neglected to comply with the duties imposed . . . by the parent and
child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(2). Those duties include providing
food and “other care and control necessary for the child’s physical, mental, or emotional
health and development.” Id. To support termination on this basis, the district court must
determine that, at the time of termination, the parent is not presently able and willing to
assume his or her responsibilities and that the condition will continue for the reasonably
foreseeable future. See In re Welfare of J.K., 374 N.W.2d 463, 466-67 (Minn. App. 1985),
review denied (Minn. Nov. 25, 1985); see also In re Welfare of Child of J.K.T., 814 N.W.2d
76, 90 (Minn. App. 2012).
Our caselaw is clear that a parent’s chemical dependency does not alone support
termination of parental rights, but terminati on has been found to be appropriate when a
parent’s chemical dependency “was likely to be detrimental to the child” or “directly
affects the ability to parent” or otherwise “renders the parent unable, for the reasonably
foreseeable future, to care appropri ately for the child’s ongoing needs.” See Children of
T.R., 750 N.W.2d at 661 -63 (“substance or alcohol abuse alone does not render a parent

17
palpably unfit”); see also In re Welfare of P.J.K. , 369 N.W.2d 286, 290 -91 (Minn. 1985)
(same regarding mental disability).
The district court cited to a number of factors in finding that mother and father had
neglected their parental duties. First, the court expressly found that the children’s physical,
mental, and emotional health or devel opment had been impaired by parent s’ continued
methamphetamine use. Second, the district court found that although mother complied with
case plans in the past, she had done so “only when she has been closely monitored” by the
county. The district court found that father “generally did not follow case plans nor did he
actively utilize services.” Based on the parent s’ failure to meaningfully engage with
important services for themselves or their children without direct supervision and their
repeated methamphetamine relapses over more than six years, the district court determined
that the parents had a “poor prognosis for recovery and a present inability to recognize [the]
children’s needs.” The record supports these findings.
There was ample testimony regardi ng the children’s mental, emotion al, and
developmental needs. Both children have significant special -needs diagnoses, require
ongoing services, and have IEPs. Son’s therapist testified that son struggles with
“emotional and behavioral dysregulation, ” and t he guardian ad litem testified that
dysregulation is common in children “ [who] are exposed to methamphetamine.” In
addition, son has tested positive for methamphetamine three times throughout his short life.
Most importantly, the district court found that , since 2016, “it objectively appears that
[son’s] emotional and behavioral struggles appreciably worsened without [the county’s]
protective supervision.”

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Daughter has fetal alcohol syndrome and “generalized anxiety disorder ”; mother
also admitted that she used methamphetamine during the first three months of her
pregnancy with daughter. Yet, at one point, mother discontinued daughter’s therapy
“because of the price of gasoline.” While we recognize the significant barriers families face
in obtaining health services in many parts of our state, the district court found that , at the
time son and daughter were placed into protective services in August 2017, both children
lacked medical insurance, even though they were eligible for public health insurance, both
children required immediate attention for physical, dental, and vision needs, and daughter
required a new mental health diagnostic assessment. Moreover, the supervised
conversations between daughter and mother as this case was proceeding toward trial
indicate that the parents have failed to appropriately respond to daughter’s mental health
needs.
The district court found that father did not comply with his case plan in the past, but
this finding is not a sufficient basis to terminate his parental rights. See Child of J.K.T., 814
N.W.2d at 89 (“The critical issue is not whether the parent formally complied with the case
plan, but rather whether the parent is presently able to assume the responsibilities of caring
for the child.”). On the other hand, the district court’s finding that father failed to provide
for the child ren’s physical, mental, or emotional health and development, support s
termination of his parental rights . Although father provided positive testimony regarding
his relationship with the children and that he supports daughter’s musical interests, he did
not address either child’s mental or emotional needs. In addition, during supervised visits
in 2017, both parents discussed inappropriate topics , such as their feelings about the

19
county’s termination petition. While father criticized the small room as not “conducive to
quality family interaction, ” the district court found that both parents showed a lack of
effort. The district court’s finding that father had very little involvement with the county
and the children is fully supported by the record.
Mother has had greater involvement with the children’s care and support. The
district court found that there is “little doubt that the parents and children love each other,”
and mother proudly testified abou t the children’s achievements in school and in other
activities. The district court found, however, that without county involvement, mother (and
father) failed to provide mental and physical health services for the children. For example,
Wolbeck testified that when the children were brought into county custody in 2017,
daughter had lice that had gone untreated, even though mother acknowledged being aware
of the problem.
The district court found that mother also lacked insight regarding the harmful effects
of her drug use on the children. The record evidence supports this finding. In a count y
interview in September 2017, daughter described frequent drug -related interactions
between her parents and their friends in the home and said she did not feel safe. Mother
blamed the county for the children’s mental and behavioral problems, testifying that the
children’s behaviors were due to “having been in and out of placement,” and not because
of her own drug use. Mother also und erestimated the children’s needs and the extensive
services that they require for their mental health care ; she testified that in 2016 and 2017,
daughter had turned around her behavior problems, “was functioning above 80 percent,”
and may no longer need he r IEP. The diagnostic assessment documented , however, that

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daughter continues to need mental health services, which she has received since her
removal from parents’ care.
The district court found not only that the children have had significant exposure to
drugs, but also that the parents’ continued drug use has caused them to neglect the children
and this neglect is likely to “continue for a prolonged, inde finite period.” See Children of
T.A.A., 702 N.W.2d at 708. The district court found that parents offered “essentially no
testimony about what would be different if they were given another ‘last chance.’” Thus,
we conclude that c lear and convincing evidence supports the district court’s conclusion
that father and mother neglected the duties imposed by the parent-child relationship.
III. The district court did not abuse its discretion by admitting the results of son’s
hair-follicle test.

On appeal, parents argue that son’s hair-follicle test result, Exhibit 20, which was
received over their objection, was not properly admitted into evidence. As a preliminary
matter, the county argues that parents may not raise this evidentiary issue on appeal because
they failed to assert it in a timely, post -trial motion to the distric t court. 4 See Sauter v.
Wasemiller, 389 N.W.2d 200, 201 -02 (Minn. 1986) (holding that evidentiary rulings not
challenged as erroneous in a post-trial motion are not reviewable on appeal). We recognize
the general rule requiring preservation of evidentiary challenges in a post -trial motion

4 On January 12, 2018, this court filed an order questioning jurisdiction, stating that
“[b]ecause appellants did not file a motion for amended findings or a new trial, it is unclear
whether appellants’ proposed issue challenging the admission of the drug test is within our
scope of review.” Both parties submitted briefing on the issue s, and on January 30, 2018,
this court filed an order accepting jurisdiction and referring the admissibility of the drug
test to this panel to consider on the merits.

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applies to termination -of-parental-rights proceedings. See Matter of Welfare of D.D.G. ,
558 N.W.2d 481, 485 (Minn. 1997). But we may consider issues in the interests of justice.
See Minn. R. Civ. App. P. 103.04 (providing that an appellate court may review any matter
as the interests of justice may require); see also Putz v. Putz, 645 N.W.2d 343, 350 (Minn.
2002) (stating appellate courts can take “any action as the interests of justice may require”)
(quotation omitted). In this case, we note that parents’ private legal counsel was discharged
in the district court’s termination order , as requested in the county’s proposed order.
Because the county was not prejudiced by parents’ failure to raise this evidentiary issue in
a po st-trial motion, and the issue was fully briefed on appeal by both parties, w e will
consider the merits of the issue.
On appeal, parents contend that the county failed to “show appropriate foundation
and chain of custody of the record ” for Exhibit 20. “Evidentiary rulings concerning . . .
foundation . . . are within the trial court’s sound discretion and will only be reversed when
that discretion has been clearly abused.” Johnson v. Washington County, 518 N.W.2d 594,
601 (Minn. 1994) (quotation omitted). Here, the district court determined that the county
provided foundation for the hair-follicle test, relying on the testimony of a test company
employee, who established “what their procedure is, how these samples were collected,
and [whose] testimony est ablishes sufficient chain of custody to establish reliability for
admission.” We discern no abuse of discretion. Further, in light of the other record evidence
demonstrating son’s declining condition while in his parents’ care, we discern no reversible
prejudicial error in admitting the hair-follicle evidence.

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IV. The district court did not abuse its discretion when it determined that
termination was in the children’s best interest.

Once a district court has determined that there is a statutory basis for termination of
parental rights, it must consider whether termination is in the children’s best interests.
Children of J.R.B., 805 N.W.2d at 905. The court balances three factors: “(1) the child’s
interest in preserving the parent -child relationship; (2) the pa rent’s interest in preserving
the parent-child relationship; and (3) any competing interest of the child.” Id. “Competing
interests include such things as a stable environment, health considerations and the child’s
preferences.” In re Welfare of R.T.B. , 492 N.W.2d 1, 4 (Minn. App. 1992). The district
court can consider such things as “the children’s need for stability and predictability, [and
a parent’s] limited bond with the children.” In re Welfare of Children of K.S.F., 823 N.W.2d
656, 668 (Minn. App. 2012).
Parents assert on appeal that the district court was incorrect in determining that it
was in the children’s best interest to terminate their parental rights. The district court found
that parents have a strong desire to parent the children, and that t here is “little doubt that
the parents and children love each other.” But the district court noted that the children did
not have an interest in preserving the parent -child relationship. The district court
specifically found that the children’s need for permanency in a “safe, stable, drug free home
outweighs any interests the parents or the children have in maintaining the parent -child
relationship.”
The district court’s findings addressed the children’s need for access to services that
will promote their physical, mental, and emotional health, and the district court also

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concluded that the “past six years have shown that these critical needs have not been met
in the parents’ home.” As previously discussed, the children have special needs and mental
health issues. And, while the children were in the parents ’ care, they did not receive
adequate mental and physical health care. Because we conclude that the district court made
adequate findings with regard to each of the three required best-interest factors, an d that
the court’s findings were supported by the record , we conclude that the district court did
not abuse its discretion in concluding that termination of mother and father’s parental rights
was in the best interests of the children. See R.T.B., 492 N.W.2d at 4.
In conclusion, we note that, while son is doing well in grandmother’s care, daughter
continues to struggle with her mental health, including threats of self -harm, and has been
removed from grandmother’s home and placed in a group home. The record further reflects
that daughter objects to the group home and would like to return to her grandmother’s
home. In contrast, the guardian ad litem concurs with the county’s decision to place
daughter in a group home. This conflict may indicate that further r eview by the county or
the district court is appropriate and that daughter may be entitled to separate legal
representation.5 On August 21, 2017, the district court appointed an attorney for daughter.
Based on our review of the record, daughter met with counsel. The district court conducted

5 At the emergency placement hearing on August 3, 2017, the district court indicated that
daughter, who was ten years old, should attend the next hearing so the court could inquire
whether she wanted to exercise her right to legal counsel. See Minn. Stat. § 260C.163,
subd. 3(d) (Supp. 2017) (providing that “where the subject of a [CHIPS petition] is ten
years of age or older” the social services agency shall inform “the child of the child’s right
to be represented by appointed counsel”).

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a hearing on September 19, during which daughter was sworn, questioned, and waived her
right to counsel. In a subsequent written order, the district court found that daughter’s
waiver of counsel was voluntary and intelligent.6 While we recognize that daughter waived
legal representation before the termination trial commenced, she is older now and her
circumstances have changed substantially. 7 See Minn. Stat. § 260C.163, subd. 3(g)
(providing that “in any proceeding where the subject of a [CHIPS petition] is not
represented by an attorney, the court shall determine the child’s preferences regarding the
proceedings, including informing the child of the right to appointed counsel and asking
whether the child desires counsel, if the child is of suitable age to express a preference”).
Thus, we remand for the district court to revisit the appointment of legal representation for
daughter.
Affirmed and remanded.

6 The appellate record does not include the relevant hearing transcript, but does include the
hearing notes. And, for reasons that are unclear, the record constructed for this appeal
included an unsigned copy of this order but lacked a signed copy of the order. Review of
the district court’s register of actions, however, shows that the district court file does, in
fact, include a signed copy of this order. For purposes of this appeal, we consider the signed
copy of the order.

7 We urge the district courts to cautiously evaluate a child’s waiver of right to counsel; in
this case, we note concerns about the daughter’s young age, her diagnoses, and the difficult
emotional circumstances. Minn. Stat. § 260C.163, subd. 10(b) (Supp. 2017) (providing that
waiver must be “voluntarily and intelligently” made, and to “determin[e] whether a child
has voluntarily and intelligently waived the right to counsel, the court shall look to the
totality of the circumstances which includes but is not limited to the child’s age, maturity,
intelligence, education, experience, and ability to comprehend, and the presence and
competence of the child’s parents, guardian, or guardian ad litem”).