In the Matter of the Welfare of the Children of: M. Z., J. P. B., S. C. D. and D. S., 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This opinion will be unpublished and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
A18-0155

In the Matter of the Welfare of the Children of:
M. Z., J. P. B., S. C. D. and D. S., Parents

Filed July 23, 2018
Affirmed
Bjorkman, Judge

Benton County District Court
File Nos. 05-JV-17-369, 05-JV-17-370, 05-JV-17-371,
05-JV-17-1738, 05-JV-17-1739, 05-JV-17-1740

David W. Buchin, St. Cloud, Minnesota (for appellant M.Z.)

Philip K. Miller, Benton County Attorney, William V. Faerber, Assistant County Attorney,
Foley, Minnesota (for respondent Benton County)

J.P.B., Foley, Minnesota (pro se respondent)

S.C.D., Sydney, Montana (pro se respondent)

Sam D. Young, St. Cloud, Minnesota (for respondent D.S.)

Lisa Zwack, Princeton, Minnesota (guardian ad litem)

Considered and decided by Reilly, Presiding Judge; Bjorkman, J udge; and
Klaphake, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-mother challenges the termination of her parental rights to five children,
arguing that (1) she was denied her statutory right to counsel when the district court neither
appointed counsel for her nor obtained her express waiver of that right and (2) the county
failed to make reasonable efforts to reunify her with the children. We affirm.
FACTS
Appellant M.Z. is the mother of S.Z., born March 2003; M.S., born March 2004;
C.S., born September 2005; Rih.B., born November 2012; and Ric.B., born May 2014.
Mother and the children have lived with respondent J.B., the father of the two youngest
children, since approximately 2012. The living conditions have been chaotic and abusive,
spurring multiple social-services interventions and prompting prolonged out-of-home
placements of the children with their maternal great aunt.
The longest such placement began in 2012, when Morrison County Social Services
learned that J.B. and his brother were using methamphetamine in the home; J.B.’s brother
discharged firearms in the home, leaving bullet holes that frightened the children; and
J.B.’s brother sexually abused S.Z. An October 2012 parenting assessment noted concerns
about unsafe conditions in the home, the parents’ noncompliance with social services, and
neglect of the children . The ass essor recommended against returning the children to
mother’s care. But in 2013, the children returned home.
The intervention that led to this termination -of-parental-rights (TPR) proceeding
began in February 2017, after respondent Benton County Human Services (the county)

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learned that mother, all five children, and J.B. were living in a camper that lacked both
running water and toileting facilities. Investigation revealed that the family used plastic
buckets for toilets, which the children were responsible for emptying; the family heated the
camper with portable heaters, raising concerns about carbon monoxide and fire ; and the
children feared J.B. because he angered quickly, hit them, and dragged them by their arms.
On February 28, t he county filed petitions alleging that the children need ed
protection or services (CHIPS). The petitions recounted the children’s living conditions
and noted J.B.’s “extensive criminal record and violent history” and the family’s “extensive
child protection history.” The county again placed the children with their maternal great
aunt. Mother retained counsel and admitted that “the children were without proper parental
care due to the erratic behaviors of [J.B.] when he was present in the residence and that
[J.B.]’s PTSD caused the erratic behavior and angry outbursts toward herself and the
children.” The district court adjudicated the children CHIPS.
The county developed a reunification case plan for mother, and the district court
ordered her to comply with it. Among other things, t he case plan required mother to :
cooperate with the county; remain law abiding; inform her case manager of her address;
allow an in-home worker to teach her parenting skills; demo nstrate how she would keep
the children safe if she continued her relationship with J.B.; complete a parenting
assessment and follow its recommendations; abstain from using chemicals and associating
with anyone using chemicals; obtain and maintain safe, st able, and appropriate housing;
and attend supervised visits with the children.

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Mother complied with some aspects of her case plan, including chemical abstinence,
regular visitation, and participating in two parenting assessments. But she refused to
provide her current address, which prev ented in-home parenting assistance and deprived
the county of the opportunity to determine if the housing was appropriate. And she
maintained contact with J.B., which concerned the county because he had multiple active
arrest warrants, refused to submit to drug test ing required by his case plan, and, w hen
arrested during the pendency of the CHIPS case , possessed and tested positive for
methamphetamine. Mother also failed to articulate a plan for keeping the children safe
from J.B.
In August, mother’s counsel moved the district court for permission to withdraw,
citing “no communication and no payment of fees.” The district court reserved a ruling on
the withdrawal motion “to allow [mother] to speak to the attorney regard ing payment
issues.” Mother subsequently dismissed counsel.
On September 12, the county filed TPR petitions with respect to mother and the
children’s respective fathers. Mother twice applied for court-appointed counsel, each time
reporting net monthly income from her full -time job slightly in excess of her monthly
expenses. The district court denied both applications, each time finding that mother was
“not financially eligible.”
Mother appeared pro se at the December TPR trial. The district court took judicial
notice of the CHIPS case reports from the guardian ad litem (GAL) and county case worker,
received the parenting-assessment reports, and heard testimony from the case worker, the
GAL, both parenting assessors, respondent D.S. (father of M.S. and C.S.), and mother. The

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district court granted the petition after determining that the county made reasonable but
unsuccessful efforts to reunify the family and that termination of mother’s parental rights
serves the children’s best interests.1 Mother appeals.
D E C I S I O N
I. The district court did not err by failing to appoint counsel for mother or obtain
her express waiver of the right to counsel.

Every parent has the right to be represented by counsel in a TPR proceeding. Minn.
Stat. § 260C.163, subd. 3(a) (2016); Minn. R. Juv. Prot. P. 25.01; In re Welfare of J.B., 782
N.W.2d 535, 540 (Minn. 2010). If a parent appears in court for such a proceeding “and is
not represented by counsel ,” the district court must advise the parent “ of the right to
representation.” Minn. R. Juv. Prot. P. 25.04. But this does not mean that a parent
“necessarily ha[s] the right to court appointed counsel.” Minn. R. Juv. Prot. P. 25.01 1999
comm. cmt. If the parent “desires counsel but is unable to employ it, the court shall appoint
counsel to represent the parent . . . in any case in which it feels that such an appointment is
appropriate if the [parent] would be financially unable to obtain counsel under the
guidelines [for public defense eligibility].” Minn. Stat. § 260C.163, subd. 3(c) (2016).
And a parent may waive her right to counsel. In re Welfare of G.L. H., 614 N.W.2d 718,
723 (Minn. 2000).
We review the decision whether to appoint counsel in a TPR proceeding for abuse
of discretion. See Minn. Stat. § 260C.163, subd. 3(c) (permitting the district court to

1 Neither J.B. nor S.D. (S.Z.’s father) appeared at trial, and t he district court ordered the
termination of their parental rights by default. The district court did not terminate D.S.’s
parental rights.

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determine whether it is “appropriate” to appoint counsel for a parent). A finding that a
parent waived the right to counsel is reviewed for clear error. G.L.H., 614 N.W.2d at 723.
Mother contends that the district court erred by not appointing counsel to represent
her and by failing to advise her of the right to counsel and obtain her express waiver of that
right. These arguments are unavailing. First, mo ther identifies no flaw in the district
court’s determination that she was financially ineligible for court -appointed counsel.
Because Minn. Stat. § 260C.163, subd. 3(c) , makes financial eligibility a prerequisite to
appointment of counsel, the court’s unchallenged determination that mother is not eligible
is not clearly erroneous and justifies its decision not to appoint counsel.
Second, while the district court did not advise mother of her right to counsel when
she appeared for the TPR trial , the circums tances of the case support the district court’s
implicit determinations that mother was aware of and waived th is right. In G.L.H., our
supreme court rejected the argument that a district court must follow the waiver procedures
required in criminal cases. 614 N.W.2d at 723. Rather, the determination whether a parent
voluntarily and intelligently waived counsel in a TPR proceeding “can be based on the
surrounding circumstances of the case.” Id. Here, m other was repeatedly notified in
writing of the bases for the CHIPS and TPR petitions and that she ha d the right to be
represented; each summons prominently declared that mother’s rights in the proceeding
include the “right to be represented by an attorney as authorized under the statutes and
court rules.” She retained and then dismissed private counsel in the CHIPS case. And she
twice applied for appointed counsel in the TPR case. In short, mother was aware that she
had the right to legal representation and knew that she bore the cost of such representation.

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By appearing without counsel at the TPR trial, mother indicated that she was waiving that
right. She expressed neither surprise nor reservation about representing herself . Rather,
she actively participated in the trial, cross-examining the county case worker, both
parenting assessors, and the GAL on the relevant issues. And she testified in opposition to
the petition.
Mother’s complaint that because she was unrepresented, the county “was able to get
its entire case in without any challen ges” is unpersuasive. She does not identify any
specific objections counsel might have made to the county’s documentary evidence—
including the written reports of the two parenting assessors , t he case worker , and the
GAL—or any of the witness testimony consistently describing the underlying concerns
about the children’s environment and mother’s failure to demonstrate that she can provide
the children a safe and stable home. Nor does mother challenge the bulk of the district
court’s findings based on that evidence.
Overall, the record reflects that mother was aware of her right to counsel, sought
and was properly denied appointed counsel, and thereafter elected to represent herself
rather than retain private counsel. The district court did not err by failing to obtain mother’s
express waiver.
II. Substantial evidence support s the district court ’s determination that the
county made reasonable efforts toward reunification.

Termination of parental rights requires clear and convincing evidence that ( 1) the
county has made reasonable efforts to reunite the family, (2) there is at least one statutory
ground for termination, and (3) termination is in the children’s best interests. In re Welfare

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of Children of S.E.P. , 744 N.W.2d 381, 385 (Minn. 2008). Because mother challenges
only the first of these requirements, we focus our analysis on the county’s reunification
efforts. We review a district court’s factual findings for clear error and will not disturb a
finding that the county made reasonable efforts if it is supported by substantial evidence .
In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901, 904 (Minn. App. 2011), review
denied (Minn. Jan. 6, 2012).
When a child is removed from the family home, the responsible social services
agency—here, the county —must make “ reasonable efforts” to reunify parent and child.
Minn. Stat. § 260.012(a) (2016). “[T]he nature of the services which constitute reasonable
efforts depends on the problem presented.” In re Children of T.R. , 750 N.W.2d 656, 664
(Minn. 2008) (quotation omitted) . In determining whether the county made reasonable
efforts, a district court considers whether the county offered services that were “(1) relevant
to the safety and protection of the child; (2) adequate to meet the needs o f 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). The court
must also consider “the length of time the county was involved and the quality of effort
given.” In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 88 (Minn. App. 2012) . Efforts
described in court-approved case plans are presumptively reasonable. S.E.P., 744 N.W.2d
at 388.
Mother contends that the county did not make reasonable reunification efforts and
instead worked “from the beginning to break the parent-child relationship.” We disagree.
The record reflects that the county afforded mother weekly visitation with her children to

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maintain their relationship and made numerous reasonable efforts to address the principal
concerns that led to the children’s removal —mother’s long-standing inability to provide
the children a safe and stable home . In this proc eeding, the concerns were manifest in
mother’s failure to provide an appropriate living environment and failure to protect the
children from J.B.
The county sought to remedy these concerns by providing services to J.B. and by
working with mother to establish a safe and stable environment for the children regardless
of J.B.’s cooperation or success. To that end, the unchallenged, court-approved case plan
directed mother to: obtain and maintain appropriate housing; inform the case manager of
her address and allow an in-home worker to teach her parenting skills; complete a parenting
assessment and follow recommendations ; abstain from using chemicals and associating
with anyone using chemicals, including J.B.; and demon strate how she would keep the
children safe if she continued her relationship with J.B. The record reflects that the
county’s efforts to assist mother in completing these tasks were stymied by her refusal to
cooperate.
Mother told the case manager that she obtained permanent housing but refused to
provide the address. This refusal prevented the county from providing in-home parenting-
skills assistance and evaluating the living arrangement and need for housing assistance.
Mother’s initial acknowledgment that J.B. presents a danger to the children and promise to
separate from him or establish a safety plan for the children gave way to increased contact
with J.B. and broken promises about keeping the children safe from him. And while mother
ostensibly cooperated with the parenting-assessment requirement (which the county

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facilitated by coordinating a second assessment after mother disagreed with the
recommendations of the first), her attitude precluded the implementation of the
recommendations. Mother’s argument that the parenting assessments occurred too late in
the process to be productive is unavailing . The district court credited the assessor’s
determination that mother’s unwillingness during those assessments—and throughout the
CHIPS process—to take responsibility for her actions made it unlikely that she would be
able to adequately address the “repetitive cycle of neglect, maltreatment, housing
insecurity, and high family conflict” in the foreseeable future. We see no clear error in this
finding.
In sum, substantial evidence indicates that the county identified and attempted to
provide numerous supportive services to help mother address the long-standing barriers
that prevent her from providing her children a safe and stable home. The district court did
not clearly err by finding those efforts were reasonable.
Affirmed.