A18-0333

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0323
A18-0333

In the Matter of the Welfare of the Child of:
A. M. C. and G. J. F., Parents.

Filed October 22, 2018
Affirmed
Rodenberg, Judge

Renville County District Court
File No. 65-JV-17-94

Jeremy Blackwelder, Holmstrom & Kvam, PLLP, Granite Falls, Minnesota (for appellant-
father G.J.F.)

Curtis Reese, Olivia, Minnesota (for appellant-mother A.M.C.)

David Torgelson, Renville County Attorney, Laurence Stratton, A ssistant County
Attorney, Olivia, Minnesota (for respondent Renville County)

Jan Tonn, Wood Lake, Minnesota (guardian ad litem)

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Jesson, Judge.
S Y L L A B U S
In a child in need of protection or services (CHIPS) proceeding , a parent’s right to
appointed counsel under Minn. Stat. § 260C.163, subd. 3(c) (Supp. 2017) does not depend
on whether the parent has been designated as a party. All parents in such cases who desire
counsel and are unable to afford counsel are entitled to appointed counsel when the district
court “feels that such an appointment is appropriate.”

2
O P I N I O N
RODENBERG, Judge
In these consolidated appeals from the termination of the paren tal rights of both
parents, we consider whether and under what circumstances a non custodial parent who is
not a party to a CHIPS proceedi ng is entitled to appointed coun sel. Under the plain
language of Minn. Stat. § 260C.163, subd. 3(c) 1, all parents who desire and are unable to
afford counsel are entitled to appointed counsel in any case in which the district court “feels
that such an appointment is appropriate.” Because the district court did not reversibly err
in terminating the parental rights of both parents, we affirm.
FACTS
Appellant-parents A.M.C. (mot her) and G.J.F. (father) are the parents of N.F., who
was born in 2008. Father is the adjudicated father of N.F. by way of a Recognition of
Parentage. The parents were never married, but lived together for approximately ten years.

1 Minn. Stat. § 260C.163 was reorganized in 2017. In 2016, the relevant portion of the
statute states that “if the child, parent, guardian, or custodian desires counsel, but is unable
to employ it, the court shall appoint counsel . . . in any case in which it feels that such an
appointment is appropriate.” Minn. Stat. § 260C.163, subd. 3(b ) (2016). In the 2017
Supplement, the statute was reorganized and some of the language in subdivision 3(b) was
moved to subdivison 3(c). The 2 017 Supplement states that “if the parent, guardian, or
custodian desires counsel but is unable to employ it, the court shall appoint counsel to
represent the parent, guardian, or custodian in any case which it feels that such an
appointment is appropriate.” Minn. Stat. § 260C.163, subd. 3(c) (Supp. 2017). The 2017
Supplement also provides that “ [c]ourt appointed counsel shall be at county expense as
outlined in paragraph (h).” Id., subd. 3(h) (Supp. 2017). The “feels appropriate” language
we address in this opinion is unchanged by the reorganization. Therefore, we cite the
current version of the statute in this opinion. See Interstate Power Co. v. Nobles Cty. Bd.
of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000) (“The general rule is that appellate courts
apply the law as it exists at the time they rule on a case.”).

3
During that time, they shared in parenting N.F. They separated in 2015, after which mother
became N.F.’s custodial parent.
Renville County Human Services (county) became involved with the family after it
received a report from N.F.’s school that N.F. had come to school in cold weather without
a winter coat, hat, or mittens. Following that report, the cou nty unsuccessfully attempted
to locate mother and father. The county discovered that N.F. h ad been living with a
m a t e r n a l a u n t a n d u n c l e b e c a u s e mother had been evicted from he r residence and was
homeless. Aunt thought that mother may be abusing prescription medications or using
methamphetamine. Father had been released from jail and was th ought to be living in
Olivia, but the county could not locate him.
The county filed a petition alleging N.F. to be a child in need of protection or
services and requested an emergen cy protective care (EPC) heari n g . A f t e r t h e E P C
hearing, the district court found that N.F. was in need of emer gency protective care and
granted temporary custody of N.F. to the county.
In December 2015, at the admit/de ny hearing on the CHIPS petiti on, mother
admitted the petition. Mother test ified that she was using dru gs, needed drug treatment,
and was then unable to adequately parent N.F. She also told the district court that she had
mental health issues and that she was homeless. The district c ourt adjudicated N.F. to be
a child in need of protection or services.2

2 In this appeal, father does not challenge that, in the CHIPS c ase, he neither admitted the
petition nor had a trial on the CHIPS petition.

4
Father attended the admit/deny hearing in the CHIPS case, and requested court-
appointed counsel. The district court denied father’s request. The district court reasoned
that, because father was a noncustodial parent, he was not a pa rty to the proceedings and
was therefore not entitled to appointed counsel. The district court told father that, although
it would not appoint counsel, father could hire a private attor ney. Father also asked to
become a party, but the district court denied this request. At a later hearing in February
2016, father again requested to intervene as a party. The dist rict court again declined to
make father a party.3
Over the next two years, and beca use of father’s repeated incar ceration, and his
resulting unavailability to parent , the county focused its reun ification efforts on mother.
The county developed three out-of-home placement plans (OHPP) with mother. It sought
out and assisted mother in finding treatment and housing on mul tiple occasions. Mother
successfully completed inpatient treatment and was making progr ess for a time. N.F.
remained in foster care, but frequently visited mother and was beginning to have overnight
visits with mother at the treatment facility. Mother’s progres s stalled when she relapsed.
The county continued to assist mother, but mother became unresp onsive to the county’s
efforts. Mother was not drug testing in compliance with the co unty’s instructions. When
she did test, she often tested positive for nonprescribed drugs . The county attempted to
hold meetings with mother, but mother often missed meetings.

3 Neither of father’s requests to intervene as a party were preceded by a formal motion.

5
During this same time, father was incarcerated for a variety of crimes in multiple
jails in Minnesota and Wisconsin. At one point, he requested execution of a stayed prison
sentence. The district court found that this amounted to “a de cision which [father] knew
would render him unavailable to participate in this proceeding.” The county was unable to
stay in contact with father during these multiple incarcerations.
N.F. remained in foster care during all of this. While in fost er care, N.F. made
academic progress and was thriving with a foster family.
In August 2017, the county filed a petition seeking termination of the parental rights
(TPR) of both parents. Both parents opposed the petition. Fat her was provided with
appointed counsel for the termination proceedings. Following a trial on the TPR petition,
the district court terminated the parental rights of both parents.
These consolidated appeals followed.
ISSUES
I. Did the district court abuse its discretion in terminating m other’s parental
rights?
II. Is father entitled to reversal of the termination of his pa rental rights because
the district court declined to appoint counsel for him in the CHIPS case?
III. Did the district court abuse its discretion in terminating father’s parental
rights?

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ANALYSIS
I. The record supports the distr ict court’s termination of moth er’s parental
rights.

Whether to terminate parental rights is discretionary with the district court. In re
Welfare of Child of R.D.L. , 853 N.W.2d 127, 136 (Minn. 2014). “We review the district
court’s findings in a TPR proceeding to determine whether they address the statutory
criteria for termination and are not clearly erroneous . . . in light of the clear and convincing
standard of proof.” In re Welfare of Children of K.S.F., 823 N.W.2d 656, 665 (Minn. App.
2012). “A finding is clearly erro neous if it is manifestly con trary to the weight of the
evidence or not reasonab ly supported by the evidence as a whole .” Id. (annotation
omitted). “We defer to the district court’s decision on termination if at least one statutory
ground for termination is supporte d by clear-and-convincing evi dence and termination is
in the children’s best interests.” Id. “A district court abuses its discretion if it improperly
applies the law.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 93 (Minn. App. 2012)
A. Mother does not challenge the district court’s findings of s tatutory
grounds to terminate her parental rights.

Mother does not challenge the district court’s findings of the existence of multiple
statutory grounds to terminate her parental rights. Nevertheless, in this case, we will invoke
our discretion to briefly consider whether the evidence is suff icient to clearly and
convincingly establish a statutor y basis for termination under Minn. Stat. § 260C.301

7
(2016).4 See Minn. R. Civ. App. P. 103.04 (s tating that appellate courts may address any
question in the interests of justice).
Among other statutory grounds, a district court may terminate p arental rights if it
finds that a parent has “substan tially, continuously, or repeat edly refused or neglected to
comply with the duties imposed upon that parent by the parent a nd child relationship.”
Minn. Stat. § 260C.301, subd. 1(b)(2). Parental duties include , but are not limited to,
“providing the child with necessary food, clothing, shelter, ed ucation and other care and
control necessary for the child’s physical, mental, or emotional health and development, if
the parent is physically and financially able.” Id. The district court must also determine
that, at the time of termination, the parent is not presently a ble and willing to assume her
responsibilities and that the condition will continue for the r easonably 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).
Here, the district court found that mother has substantially, c ontinuously, or
repeatedly refused or neglected to comply with her parental dut ies “by failing to remain
sober and continuing the use of controlled substances.” This i s well-supported by the
record. N.F. has been in foster care since December 2015, and mother was not caring for
N.F. before removal. Mother has continued to struggle with dru g use despite multiple
opportunities for treatment. Mother’s relapses and continued use of controlled substances
prevented her from parenting or even meaningfully interacting with N.F. through visits and

4 Oral arguments in this case were heard on September 12, 2018. Father’s counsel argued
for both mother and father because mother’s counsel was ill.

8
phone calls. The record supports the district court’s findings concerning this statutory basis
for termination, and the district court acted within its discre tion in finding that a statutory
basis for termination of mother’s parental rights under Minn. S tat. § 260C.301, subd.
1(b)(2) was proved.
B. The record supports the district court’s finding that the co unty made
reasonable efforts to reunify N.F. with mother.

Mother argues that the services offered her were not reasonabl e. Specifically, she
argues that the county lacked knowledge concerning her mental-health issues and that the
county did not monitor or incorporate her mental-health treatme nt and therapy into its
reunification plan.
In most TPR cases, the petitioner must show clear and convinci ng evidence that
reasonable efforts were made to reunite the parent with the child. In re Children of T.A.A.,
702 N.W.2d 703, 708 (Minn. 2005). Minnesota law requires the d istrict court to find
whether “reasonable efforts to fin alize the permanency plan to reunify the child and the
parent were made.” Minn. Stat. § 260C.301, subd. 8(1). A dist r i c t c o u r t m u s t m a k e
specific findings as to whether the county provided reasonable efforts to rehabilitate the
parent and to reunify the child and parent. Minn. Stat. § 260.012(h) (2016).
The district court must also consider whether the services prov ided 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.” Id. “Whether the county has met its
duty of reasonable efforts requires consideration of the length of the time the county was

9
involved and the quality of the effort given.” In re Welfare of H.K., 455 N.W.2d 529, 532
(Minn. App. 1990), review denied (Minn. July 6, 1990).
Here, the district court found t hat, following N.F.’s out-of-h ome placement,
reasonable efforts failed to correct the conditions leading to N.F.’s placement. The district
court specifically found that the county (1) provided mother wi th multiple opportunities
for treatment for her chemical dependency, (2) provided transportation for mother to visit
with N.F., (3) found housing for mother and provided transportation once that housing was
located, (4) set up a family-group-decision-making conference to assist mother with ways
to succeed in her treatment desp ite multiple relapses, and (5) recommended several
extensions in the time N.F. could remain in foster care without a permanency determination
to allow mother to continue worki ng toward reunification. The record supports these
findings.
A case manager was appointed to mother’s case and a case plan was generated.
Mother did not comply with the case plan. The case plan approp riately targeted
reunification efforts on mother’s history of drug addiction and homelessness. From
December 2015 until the termina tion trial in November 2017, the county continued to
arrange for treatment, housing, and other services for mother.
After N.F. was placed in foster care, the county explained to mother what she needed
to do in order for N.F. to return home. She needed to complete a rule 25 chemical-use
assessment and follow all recommendations, abstain from chemical use, submit to random
drug testing, stay in contact with the county, and meet regularly with the county to review

10
progress. Mother did take a chem ical-use assessment, which rec ommended that she go
into inpatient treatment.
By early 2016, the county had he lped mother find and enter inpa tient treatment.
Mother was then visiting N.F. on a regular basis. Mother was successfully discharged from
the inpatient portion of the program, and the county made arran gements for her to go to a
halfway house, Journey Home, for additional services.
While at the halfway house, mot her had five overnight visits with N.F. But mother
twice relapsed on methamphetamine during August 2016. Undeterred, and still looking to
reunify N.F. with mother, the county arranged for mother to go to another inpatient
treatment program, Recovery Plus.
By November 2016, mother had co mpleted the inpatient treatment at Recovery Plus
and was admitted back to Journey Home. The county anticipated that mother would be
successfully discharged in January 2017, and continued to meet with her regarding her
progress. But mother was discharged from Journey Home in January 2017 for not making
adequate progress. Mother then moved to Brainerd to live with her sister.
The county located a drug-testing facility in the Brainerd area so that mother could
work on her case plan. Mother began to refuse testing and repeatedly failed to show up to
test. She eventually tested positive for methamphetamine several times.
Even after that, in April 2017, the county found mother yet ano ther residence in a
long-term homelessness program. The county coordinated and provided transportation for
mother’s relocation to the new r esidence, and a case manager th ere assisted mother with

11
coordinating services and looking for work. The county remained involved with mother’s
case plan.
In May 2017, mother reported to t he county that she had again relapsed. Mother
sought out another outpatient relapse-recovery facility, which she attended twice per week.
In July 2017, mother was discharged from the outpatient treatme nt program for poor
attendance, for not attending Narcotics Anonymous (NA) meetings , and for not seeking
out a sponsor. Mother tested positive for amphetamine three times in July 2017.
The county social worker saw a decline in mother’s compliance with services from
summer 2017 up to the termination trial. The county arranged a family-group-decision-
making meeting with mother in July 2017 to assist mother with finding treatment options.
Mother became confrontational and left the meeting early. The county’s efforts to assist
mother with her addiction issues were not only reasonable; the efforts were herculean, but
were ultimately unsuccessful.
Mother also argues that the c ounty’s efforts were not reasonable because they failed
to address mother’s mental-health concerns. The county did not specifically include mental
health in mother’s case plan because mother was already seeing a psychotherapist. The
focus of the county’s efforts was, for obvious reasons, mother’ s profound and recurring
chemical dependency. The county’s efforts were interrupted by mother’s repeated relapses
and failures to submit to drug testing. This record amply supp orts the district court’s
determination that the county made reasonable efforts to reunify N.F. with his mother.

12
C. The district court did not a buse its discretion in finding that termination
of mother’s parental rights is in N.F.’s best interests.

Mother also challenges the district court’s finding that termination is in N.F.’s best
i n t e r e s t s . I n a T P R c a s e , t h e b e s t i n t e r e s t s o f t h e c h i l d “ m u st be the paramount
consideration.” Minn. Stat. § 260C.301, subd. 7. “Even if a s tatutory ground for
termination exists, the district court must still find that termination of parental rights . . . is
in the best interests of the child.” K.S.F., 823 N.W.2d at 668.
In analyzing a child’s best inte rests, 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 parent-child relationship; and (3) any competing interest of the child.” In
re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). We apply an abuse-of-discretion
standard of review to a district court’s conclusion that termination of parental rights is in a
child’s best interests. In re Welfare of Children of J.R.B. , 805 N.W.2d 895, 905 (Minn.
App. 2011), review denied (Minn. Jan. 17, 2012).
The district court made findings on each of the relevant factor s. It considered
mother’s chemical-dependency issues, her unstable housing situation, and the fact that N.F.
has been successful while in foster care. These are all valid considerations.
N.F. has been in foster care since December 2015. The district court noted that N.F.
gets along well with the foster family and that the foster home provides him with a safe,
stable, and happy home. Mothe r’s inconsistent visits and unrel enting use of controlled
substances have rendered her unavailable to N.F. N.F.’s foster parent testified that it

13
became normal for mother to miss visits, and that when mother cancelled visits, N.F. stated
“good,” because N.F. “didn’t want to go anyway.”
The district court also credited trial testimony that N.F. needs stability at home and
in school because N.F. meets the statutory definition for Sever e Emotional Disturbance
(SED) and Emotional Disturbance (ED). The record supports this finding. Over the course
of the last two years while in foster care, N.F.’s behavior imp roved and he has made
academic progress.
Moreover, there is ample evidence in the record to support the district court’s
conclusion that mother is in no position to care for N.F. in th e reasonably foreseeable
future. The district court acted within its discretion in find ing that N.F.’s best interests
would be served by terminating mother’s parental rights.
II. The district court’s basis f or declining to appoint counsel f o r f a t h e r i n t h e
CHIPS proceeding was contrary to the plain language of Minn. St at.
§ 260C.163, subd. 3(c), but the error does not warrant reversal of the
termination of father’s parental rights.

Father argues that the district court improperly denied him his right to appointed
counsel in the CHIPS case, and argues that this denial of counsel violated his rights under
the due-process and equal-protection clauses of the United Stat es and Minnesota
Constitutions. He also argues that we should reverse the termination of his parental rights
because the district court misint erpreted and misapplied the Mi nnesota statutes and rules
pertaining to appointment of counsel for parents in a CHIPS proceeding.
As discussed in more detail below, we undertake consideration of father’s improper-
denial-of-counsel arguments understanding that father’s complaint arises from the CHIPS

14
proceeding, and not from this TPR case. Father had the assistance of appointed counsel in
the TPR trial and on appeal. Despite father’s arguments arisin g from the district court’s
decision in the CHIPS proceeding, we think the two proceedings sufficiently related that
father’s present challenge should not be regarded as an impermi ssible collateral attack on
the district court’s orders in the CHIPS case. See, e.g., Henderson v. Kibbe, 431 U.S. 145,
154 (1977) (discussing, in the context of a federal habeas corp us proceeding, a limited
circumstance in which a state court’s final judgment may be collaterally attacked); Bode v.
Minn. Dep’t of Nat. Res. , 612 N.W.2d 862, 866-68 (Minn. 2000) (discussing the
circumstances in which a judgmen t may be collaterally attacked) . We therefore address
father’s argument on its merits.
A. The district court’s denial of appointed counsel to father i n the CHIPS
case did not violate father’s constitutional rights.

First, father argues that the district court’s denial of appointed counsel violated the
Equal Protection Clause of the United States Constitution becau se he is similarly situated
to other noncustodial parents in CHIPS cases in Minnesota who a re provided with
appointed counsel.
The Equal Protection Clause mandates that similarly situated individuals be treated
alike. See U.S. Const. amend XIV, § 1. Father produced no evidence to the district court
which supports his argument that he was treated differently than others similarly situated.
See R.D.L., 853 N.W.2d at 132 (“We have required that a party establish t hat he or she is
similarly situated to persons who have been treated differently in order to support an equal
protection claim.”). We do not address father’s equal-protection argument further, because

15
the issue is inadequately briefe d and because we see no basis i n this record for an equal-
protection challenge.5
Second, Father argues that the district court violated his due- process rights under
both the United States and Minne sota Constitutions when it did not appoint counsel for
him during the CHIPS proceedings.
An indigent parent has no fede ral constitutional due-process ri ght to counsel in a
TPR proceeding. Lassiter v. Dep’t. of Soc. Servs. , 452 U.S. 18, 31-32, 101 S. Ct. 2153,
2161-62 (1981). The Minnesota Supreme Court has not determined that the Minnesota
Constitution provides parents a due-process right to appointed counsel in a CHIPS case.
Moreover, Minnesota affords parents a statutory right to court-appointed counsel in
CHIPS and TPR proceedings. Mi nn. Stat. § 260C.163, subd. 3(c) (Supp. 2017); see also
Minn. R. Juv. Prot. P. 25.02, subd. 2. The district court did appoint counsel for father
during the termination proceedings. We therefore turn to fathe r’s claim that the district
court erred under Minnesota statutory law when it declined to a ppoint counsel for him in
the CHIPS case.
B. The district court erroneously based its denial of appointed counsel for
father on the fact that father was not a party to the CHIPS case.

Father argues that the termination of his parental rights should be reversed because
the district court’s denial of a ppointed counsel during the CHI PS proceedings was based
on an error of law.

5 Father’s counsel also conceded, at oral argument, that there i s no record evidence to
support father’s claim. We appreciate counsel’s candor on this point.

16
“Statutory interpretation is a question of law that we review de novo.” In re Welfare
of Children of J.B. , 782 N.W.2d 535, 539 (Minn. 20 10). “Our goal in statutory
interpretation is to ascertain and effectuate legislative inten t.” Id.; see also Minn. Stat.
§ 645.16 (2016). “If a statute is unambiguous, we interpret the text of the statute according
to its plain language.” J.B., 782 N.W.2d at 539.
Minn. Stat. § 260C.163 (Supp. 2 017) guides the district court’ s appointment of
counsel in CHIPS proceedings. See Minn. R. Juv. Prot. P. 25.02, subd. 2 (noting that
appointment of counsel for a parent of a child who is the subject of a child-protection matter
“shall be pursuant to Minnesota Statutes § 260C.163, subd. 3(a)-(g)”). The statute provides
that “[t]he child, parent, guardian or custodian has the right to effective assistance of
counsel in connection with a proceeding in juvenile court as provided in this subdivision.”
Minn. Stat. § 260C.163, subd. 3(a). “Parent” means “a person who has a legal parent and
child relationship with a child which confers or imposes on the person legal rights,
privileges, duties, and obligations.” Minn. Stat. § 260C.007, subd. 25(a) (2016). A legally
recognized parent and child relationship is established between a child and a father when,
as here, there has been an adjudication of paternity. See Minn. Stat. § 260C.007, subd.
25(b)(2)(i)-(vii) (2016).
Appointment of counsel for parents in child-welfare cases is, a s noted above,
governed by statute.
Except in proceedings where the sole basis for the petition is
habitual truancy, if the parent, guardian, or custodian desires
counsel but is unable to empl oy it, the court shall appoint
counsel to represent the parent, guardian, or custodian in any
case in which it feels that such an appointment is appropriate

17
if the person would be financially unable to obtain counsel
under the guidelines set forth in section 611.17.

Minn. Stat. § 260C.163, subd. 3(c) (emphasis added). Court-appointed counsel shall be at
the county’s expense. Id., subd. 3(h).
Minn. Stat. § 260C.163 does not define “appropriate.”
6 Neither does the statute
provide standards or factors that a district court should apply or consider.
When statutes explicitly entrust the district court to determine what is appropriate,
we review for an abuse of discretion. In re Welfare of J.J.P., 831 N.W.2d 260, 269 (Minn.
2013) (stating that statutory language authorizing a district c ourt to act when “it deems
advisable” grants the district court discretion to determine when expungement of an order
adjudicating the juvenile delinquent is appropriate). In such cases, we will not conclude
that a district court has abused its discretion absent a resolu tion of the question that is
against logic and the facts of record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)
(“There must be a clearly erroneous conclusion that is against logic and the facts on record
before this court will find that the trial court abused its discretion.”).
Here, the district court denied father appointed counsel because, under the Rules of
Juvenile Protection Procedure, father was not a party. Those r ules make a distinction
between parties and participants. See Minn. R. Juv. Prot. P. 21.01-.02. Under the rules, a
noncustodial parent is a participant. Parties have extensive r ights to actively take part in

6 The legislature’s use of the verb “to feel” is unusual, but we take the statute as we find it.
In context, we understand the verb to have the meaning: “To be persuaded of” or “To
believe; think.” The American Heritage Dictionary of the English Language 647 (5th ed.
2011).

18
the proceedings, while particip ants are only entitled to notice , to receive a copy of the
petition, and to attend hearings. Compare Minn. R. Juv. Prot. P. 21.02 (parties’ rights)
with Minn. R. Juv. Prot. P. 22.02, subd. 1 (participants’ rights). The rules also allow for a
participant to become a party by intervening under rule 23. Mi nn. R. Juv. Prot. P. 21.01,
subd. 1(e), 22.02, subd. 1. A parent may intervene as a matter of right, on motion duly
made. Minn. R. Juv. Prot. P. 23.01, subd. 3, .03, subd. 1.
Minn. Stat. § 260C.163, however , makes no distinction between parents who are
parties and parents who are participants. To like effect, the rule concerning appointment
of counsel for parents does not distinguish between parents who are parties and parents
who are participants. Minn. R. Juv. Prot. P. 25.02, subd. 2. The rule neither requires nor
suggests that a parent must be a party before he may have appoi nted counsel. See id. As
discussed, the statute allows for the district court to appoint counsel for any indigent parent
when the district court feels that it would be appropriate. And it is undisputed that father
is an adjudicated parent of N.F. Because the district court misapplied the law, it abused its
discretion. J.K.T., 814 N.W.2d at 87.
C. The district court’s denial of counsel to father in the CHIP S case, which
was not appealed, does not constitute grounds to reverse the termination
of father’s parental rights.

Despite the district court’s denial of appointed counsel for father in the CHIPS case
based on father’s status as a participant, we decline to revers e the termination of father’s
parental rights for at least three reasons. First, and as noted, there was no appeal or petition
for prohibition or mandamus from the district court’s orders in that file. Second, and on
this record, the district court could have declined to appoint counsel for father in the CHIPS

19
case had it felt, as it seems it may have felt, that appointmen t of counsel would be
inappropriate for a parent who is repeatedly incarcerated, unavailable to care for the child,
and marginally interested in working a case plan. Third, the p aramount best interests of
N.F. would not be advanced by further delay of a safe and permanent placement for him.
The CHIPS case was a proceeding in district court separate from this TPR case. The
record is clear that, until the summer of 2017, the plan in the CHIPS file was to return
N.F.’s custody to mother. N.F. has been in foster care since December 2015, and, despite
N.F.’s out-of-home placement having exceeded 12 months, the plan until August 2017 was
that N.F. would and could be successfully returned to mother. See Minn. Stat. § 260C.503,
subd. 1 (2016) (requiring permanency proceedings for children placed out of home for 12
months except in certain circumstances). 7 There was no appeal from the district court’s
determination that N.F. was in need of protection or services, nor did father seek relief by
prohibition or mandamus concerning the district court’s decision not to appoint counsel for
him. We also note that, while father asked for appointed couns el in the CHIPS case, he
did not identify specific reasons why it would be appropriate t hat he have appointed
counsel. While the CHIPS proceedings are relevant to this appeal, this appeal is from the
district court’s termination of parental rights and father was provided with appointed
counsel in the TPR case.

7 Child-protection proceedings a re typically expedited “for the best interests of children
who are in need of protection.” R.D.L., 853 N.W.2d at 134. The district court permitted
N.F.’s foster-care placement to continue beyond the typical 12- month maximum in order
to accommodate the county’s efforts to reunify N.F. with mother.

20
Second, father’s right to appointed counsel in the CHIPS case was not absolute. The
statute provides an appointed-counsel right to a parent regardless of whether that parent is
a party to the CHIPS case, but entrusts the district court to determine whether appointment
of counsel is “appropriate.” Minn. Stat. § 260C.163, subd. 3(c). We infer from a number
of the district court’s statements in the CHIPS file that, even if it had applied the correct
statutory standard to father’s request for appointed counsel in that case, it implicitly “felt”
or determined that appointment of counsel for father was not ap propriate. Id. As noted,
father was incarcerated for significant periods of time and was repeatedly noncompliant
with conditions of his probation in multiple criminal files—conditions that were similar to
the components of his proposed (but unsigned) OHPP. Father was not meaningfully
available as a potential safe placement for N.F. On this recor d, we cannot say that the
district court would have abused its discretion had it determin ed that appointment of
counsel for father in these circumstances would not have been “appropriate.”
Finally, we are mindful that the best interests of N.F. are par amount here. Minn.
Stat. § 260C.001, subd. 2(a) (2016). And timely permanency is a critical consideration for
the wellbeing of maltreated children. R.D.L., 853 N.W.2d at 134-35. N.F. has been placed
out of home for nearly three years. Accordingly, and despite the district court’s erroneous
reasoning for not appointing counsel for father in the CHIPS file, we decline to reverse its
termination of father’s parental rights on this basis.

21
III. The record supports the district court’s termination of fa ther’s parental rights.

Father argues that, despite his being incarcerated during most of the CHIPS case, he
did not intend to abandon N.F. and the district court erred in finding that he abandoned
N.F.
We will affirm the district court’ s termination of parental rig hts when a statutory
ground for termination is supported by clear and convincing evidence, termination is in the
best interests of the child, and the county has made reasonable efforts to reunite the family.
In re Welfare of Children of S.E.P. , 744 N.W.2d 381, 385 (Minn. 2008). Parental rights
may be terminated if the district court finds that “the parent has abandoned the child.”
Minn. Stat. § 260C.301, subd. 1(b)(1). “Abandonment requires: (1) actual desertion of the
child, and (2) an intention to forsake the duties of parenthood .” In re Children of Wildey,
669 N.W.2d 408, 414 (Minn. App. 2003), aff’d as modified, In re Welfare of Children of
R.W., 678 N.W.2d 49, 55 (Minn. 2004). “Under Minnesota caselaw, im prisonment alone
is not sufficient to constitute abandonment.” In re Children of Vasquez, 658 N.W.2d 249,
254 (Minn. App. 2003). Parental rights may be preserved if a parental relationship existed
prior to incarceration, and if the imprisoned parent continued the relationship to the best of
his ability while incarcerated through letters, cards, visits, and inquiries into the children’s
welfare. In re Welfare of Staat , 178 N.W.2d 709, 713 (Minn. 1970). Imprisonment may
combine with other factors, such as parental neglect and the wi thholding of parental
affection, to support a finding of abandonment. Vasquez, 658 N.W.2d at 254.

22
A. The record supports the distri ct court’s determination that father
abandoned N.F.

The district court found that father’s incarceration was a significant, but not the sole,
factor proving father’s abandonment of N.F. Father was incarce rated at least six times in
2015, and from March 10 to August 30, 2016; October 2 to October 17, 2016; January 19
to March 18, 2017; and May 16 to October 29, 2017. The distric t court summarized the
steps that father could have tak en to mitigate a finding of aba ndonment. He could have
completed mental-health and chemical-dependency evaluations. H e could have met with
the county social worker, signed an OHPP, and followed it. He could have worked with
his probation officer to address the same issues that were part of his OHPP. He could have
complied with probation terms to avoid further periods of incar ceration. He could have
refrained from demanding execution of his prison sentence and i nstead worked on his
OHPP. He could have stayed in c ontact with the guardian ad lit em and social worker to
see how N.F. was doing and to have contact with N.F. through le tters and cards. Father
could have maintained a relations hip with N.F. despite his inca rceration. He did none of
these things. Father had no meaningful contact with N.F. while incarcerated or during the
few periods when he was not in jail or prison. See J.R.B., 805 N.W.2d at 904-05 (affirming
a determination that children were neglected and in foster care where children had been in
court-ordered foster care for two years and father had not exercised consistent, meaningful
visitation with the children while he was incarcerated).
The district court did not termina te father’s parental rights s olely because he was
incarcerated, but expressly noted that father requested execution of a prison sentence when

23
he instead could have worked on p arenting. Father’s choice ren dered him unavailable to
participate in the CHIPS case or be a father to N.F., evidencing an intention to forsake the
duties of parenthood. The record supports the district court’s findings. The district court
did not abuse its discretion in f inding that father’s repeated incarceration, combined with
his lack of communication and involvement with N.F., constituted abandonment.
The record appears to us to sup port the district court’s findin g that other statutory
grounds for termination were proved, 8 although a single statutory ground is sufficient to
terminate parental rights. See K.S.F., 823 N.W.2d at 663 (“[I]f after a hearing the court
finds by clear and convincing evidence that one or more of the conditions set out in section
260C.301 exist, it may terminate parental rights.”). We therefore do not review these other
statutory grounds in detail, but note that the record appears to support them.
B. The district court’s finding t hat the county m ade reasonable efforts to
reunify N.F. with father is not clearly erroneous.

Father argues that the county did not make reasonable efforts t o reunite him with
N.F.9 Specifically, father argues that the county’s efforts to cont act him while he was
incarcerated were insufficient.

8 The district court also found that father “has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon that parent by the parent and
child relationship” and “that [N.F.] is neglected and in foster care.”

9 The county does not argue on appeal that reasonable efforts to reunify N.F. with father
were not necessary because of the abandonment finding. And, as noted, the district court’s
termination of father’s rights was based on the county’s proof of multiple statutory
grounds.

24
As discussed concerning mother, the district court must make th e determination of
r e a s o n a b l e e f f o r t s u n d e r M i n n . S t a t . § 2 6 0 . 0 1 2 ( h ) . “ I n s o m e c ases, any provision of
services or further provision of services would be futile, and therefore unreasonable.” In
re Welfare of S.Z. , 547 N.W.2d 886, 892 (Minn. 1996 ). What constitutes “reasonab le
efforts” depends on the facts of each case. Id.
The district court found that the county informed father of the steps that he needed
to take if he wished to reunify with N.F., including resolving the Order for Protection and
submitting to random drug tests. The district court also found that the county had attempted
to contact father by phone and by mail. The district court fou nd father’s lack of effort to
take advantage of services that he was offered rendered the county’s efforts futile.
Based on this record, any efforts that the county made or attempted were disrupted
by father’s repeated periods of in carceration. At the beginning of the proceedings, father
attended hearings and called the county to set up visits. The county did set up several visits
for father, but these meetings never came to fruition because father was incarcerated. The
county’s efforts, alth ough imperfect, were reasonable under the circumstances. The
records supports the district court’s finding that the county made reasonable efforts.
C. The district court did not a buse its discretion in finding that termination
of father’s parental rights is in N.F.’s best interests.

Father argues that the district court abused its discretion in finding that N.F.’s best
interests favor terminating father’s parental rights. Specific ally, father argues that he has
a great interest in preserving the parent-child relationship and that, if N.F. were returned to
father’s care, N.F. will live near other family members in a culturally appropriate lifestyle.

25
The best-interests analysis is flexible and weighs competing factors in addressing a
child’s best interest, including a parent’s interest in continuing to parent his child and the
benefit to the child from continuing ties with his birth parents and their culture. See In re
Welfare of Child of S.S.W. , 767 N.W.2d 723, 731 (Minn. App. 2009) (stating that
determining a child’s best intere sts involves consideration of “the child’s unique
circumstances and individual needs,” citing multiple statutory standards on best interests).
The best-interests analysis also allows the district court to d ecide that the child’s need for
a safe, stable environment outweighs the pull of parental affection or cultural ties.
The record supports the district court’s findings that the bes t interests of N.F. weigh
in favor of terminating of father’s parental rights. Father ha s not had consistent contact
with N.F. since these proceedings began and was not the custodial parent when the CHIPS
petition was filed. There is no record evidence to indicate that N.F. has a strong bond with
father. To the contrary, the re c o r d c o n s i s t e n t l y r e v e a l s t h e absence of any significant
emotional attachment to father. While father argues that it would be in N.F.’s best interests
to return the child to father so that N.F. can form relationshi ps with other relatives, the
record does not support that N.F had a significant bond with ot her relatives. The district
court acted within its discreti on in finding that it is in N.F. ’s best interests to terminate
father’s parental rights.
D E C I S I O N
Under Minn. Stat. § 260C.163, subd. 3(c), each parent in a CHI PS proceeding shall
be appointed counsel if the pa rent cannot afford counsel and th e district court feels that
appointment of counsel is appropriate. The district court’s error of law concerning father’s

26
right to counsel in the CHIPS file does not require reversal in this TPR proceeding. The
record supports the district cour t’s determinations of statutor y grounds to terminate the
parental rights of both parents and the district court acted wi thin its discretion in
terminating parental rights.
Affirmed.