In the Matter of the Welfare of the Child of: T. K. U. and T. D. K., 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This opinion will be unpublished and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
A18-0387

In the Matter of the Welfare of the Child of:
T. K. U. and T. D. K., Parents.

Filed August 13, 2018
Affirmed
Cleary, Chief Judge

Otter Tail County District Court
File No. 56-JV-17-2352

Michelle M. Eldien, Otter Ta il County Attorney, Kurt A. Mortenson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent Otter Tail County Human Services)

Kimberly Stommes, Stommes Law Office, St . Cloud, Minnesota (for appellant father,
T.D.K.)

Matthew D. Jorud, Fergus Falls, Minnesota (for respondent mother, T.K.U.)

Deanne Raitz, Fergus Falls, Minnesota (guardian ad litem)

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from the termination of his parental rights, appellant-father T.D.K. argues
that the record does no t support the district court’s determ inations that: (1) he failed to
satisfy his parental duties and failed to co rrect the conditions leading to R.K.U.’s

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placement; (2) termination is in the child’s best interests; and (3) the agency’s reunification
efforts were adequate. We affirm.
FACTS
R.K.U. was born in November 2016. Prior to her pregnancy, respondent Otter Tail
County Human Services (the agency) provide d services to R.K.U.’s mother. Before
R.K.U. was born, mother acknowle dged appellant-father’s paternity 1 and expressed that
she did not believe she could care for the child but that she did not want father to care for
R.K.U. The day after R.K.U. was born, an emer gency-protective-care order for custody
was granted. At the emergency-protective-car e hearing in December 2016, the district
court found that it would be in R.K.U.’s best interests to remain placed with the agency.
The agency implemented an out-of-hom e placement plan in June 2017 that
identified tasks father needed to complete for R.K.U. to be placed in his care and custody.2
Notable recommendations included financially providing for R.K.U., completing an anger-
management assessment and following all re commendations, signing an authorization to
release information, submittin g to random drug testing, following thro ugh with any
chemical-dependency-assessment recommendations, contacting the agency if he could not
appear at a scheduled visit, obtaining sa fe and appropriate hous ing, and completing a
parental-capacity assessment and following recommendations. Over the course of

1 Father’s paternity was also presumed from genetic testing at a later date.

2 Father did not receive recommendations un til June 2017 because paternity was not yet
presumed when the initial out-of-home place ment plan was implemented in December
2016.

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discussing the case plan and an additional s hort-term agreement, father questioned and
disagreed with several listed recommendations.
Father submitted urine tests in December 2016 and January 2017. He was initially
unable to provide a sample on both dates. The sample that father eventually provided in
January “did not appear to have a yellow hue/color” and the te st showed abnormal
creatinine results, which are consistent with a diluted sample.
Father began having supervised visits w ith R.K.U. at the end of December 2016.
Between December 2016 and January 2018, he visited with R.K.U. on 14 occasions. Father
failed to appear for four visits sche duled between January and September 2017.3 A visit
scheduled in February 2017 was canceled afte r it was discovered that he had an active
warrant for failing to appear for a court proceeding. No visits took place in July and August
2017 because the agency was unable to contact father.
After father started visiting with R.K.U. on a more consistent basis in November
2017, R.K.U. became “clingy” with her foste r-care providers and had issues with her
balance. The district court noted that father’s increased visits appeared to “have a negative
impact on the child’s development.”
At trial, father identified four residences where R.K.U. could reside with him. But
the district court noted that it was unclear where father actually resided. The district court
noted that it was difficult “to assess [father]’s permanency for a residence when he merely

3 Father testified that he missed several visits due to his own father passing away.

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identifies locations without particularized esta blished housing that th e Agency is able to
verify.”
Father testified that he works for other people, doing “anything that they need done.”
The district court noted that it was unclear if father’s employment required him to move to
different locations “and how that will be stabilized if he obtained custody” of R.K.U.
Dr. Kathleen Schara, a psychologist at Lakeland Mental Health Center, completed
father’s parental-capacity assessment. Dr. Schara evaluated seventeen factors to determine
father’s parental capacities. Dr. Schara fou nd father to be margin al on nine factors and
impaired on seven factors. Father was adequa te on the remaining factor. After testing,
Dr. Schara diagnosed father with “an Other Unspecified Personality Disorder with features
of paranoia and antisocial behavior” that sh e noted would be a co mplicating factor in
treatment and remediation efforts. Dr. Schara opined that father was incapable of providing
adequate care for R.K.U. and had significant areas of impairment which made reunification
not in R.K.U.’s best interests. The distri ct court evaluated Dr. Schara’s methods and
conclusions and found that her determinations and recommendations were credible.
The guardian ad litem observed R.K.U. mo nthly throughout the proceedings. The
district court noted that the guardian ad lite m expressed “concerns related to [father]’s
ability to parent [R.K.U.] due to a lack of stability in his life to provide for his child.” The
guardian ad litem noted that father did not main tain frequent contact with R.K.U. in the
form of visits and failed to maintain stable housing or employment. The guardian ad litem
recommended father’s parental rights be term inated, noting that R.K.U.’s interests in
security and a bond with the foster parents outweighed the parent-child relationship with

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father. The district court found that the gu ardian ad litem’s concerns were related to
R.K.U.’s safety and well-being.
The agency filed a petition to terminate mo ther’s and father’s parental rights on
August 3, 2017. The agency cited two statutory grounds for termination: (1) under Minn.
Stat. § 260C.301, subd. 1(b)(2) (2016), substantial refusal or neglect to comply with duties
of a parent; and (2) under Minn. Stat. § 2 60C.301, subd. 1(b)(5) (2016), failure of
reasonable efforts to correct conditions that led to out-of-home placement. At
intermediate-disposition hearings in August and November 2017 and January 2018, the
district court noted that both mother and father made minimal efforts toward alleviating or
mitigating the causes for placement.
After a court trial in January 2018 at which the foregoing evidence and testimony
was presented, the district court terminated mother’s and father’s parental rights. In its 52-
page order,4 the district court considered the recommendations of Dr. Schara, the guardian
ad litem, and the agency empl oyee who had worked closely with mother and father and
who also recommended terminating father’s parental rights. The district court also found
that the agency had made reas onable efforts to reunify R.K.U. with her parents, but that
father’s failure to participat e in the services provided frust rated reunification efforts.
Father now appeals.

4 In its order, the district court also discha rged court-appointed c ounsel for mother and
father. While not an issue in this appeal, we note that a district court should not discharge
court-appointed counsel in an order without sp ecifying when the disc harge is effective.
See Minn. R. Juv. Prot. P. 25.06(a) (representation contin ues until “all district court
proceedings . . . have been completed, incl uding filing and resolution of all post-trial
motions.”).

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D E C I S I O N
District courts are vested with broad discretion in deci ding child protection cases.
In re Booth, 253 Minn. 395, 400, 91 N.W.2d 921, 924 (1958). On appeal from a district
court’s decision to terminate parental rights, “we will review the district court’s findings
of the underlying or basic facts for clear error, but we review its determination of whether
a particular statutory basis for involuntarily terminating parental rights is present for an
abuse of discretion.” In re Welfare of Children of J.R.B. , 805 N.W.2d 895, 901 (Minn.
App. 2011), review denied (Minn. Jan. 17, 2012).
In reviewing the district court’s findi ngs, “appellate courts are limited to
determining whether the findings address the statutory criteria, whether those findings are
supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare
of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). A finding is clearly erroneous only if the
appellate court is left with the “definite and firm conviction that a mistake has been made.”
In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996) (quoting In re Estate of
Beecham, 378 N.W.2d 800, 802 (Minn. 1985)).
Appellate courts “affirm the district court’ s termination of parental rights when at
least one statutory ground for termination is supported by clear and convincing evidence
and termination is in the best interests of the child, provided that 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) (citation omitted). Ap pellate courts review a district court’s
determination of whether termina tion of parental rights is in the child’s best interests for
an abuse of discretion. J.R.B., 805 N.W.2d at 900. “Among other ways, a district court

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abuses its discretion if it acts against logic a nd the facts on record, or if it enters fact
findings that are unsupported by the record, or if it misapplies the law.” In re Adoption of
T.A.M., 791 N.W.2d 573, 578 (Minn. App. 2010) (quotations and citations omitted).
I. Clear and convincing ev idence supports the district court’s order terminating
father’s parental rights.

Father contends that the ev idence does not support the di strict court’s termination
of his parental rights. We disagree.
A. Neglect of Parental Duties
The district court first found that father “substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon [him] by the parent and child
relationship” under Minn. Stat. § 260C.301, subd. 1(b)(2).
So long as a parent is physically and financially able, “the duties imposed” include
“providing the child with necessa ry food, clothing, shelter, e ducation, and other care and
control necessary for the child’s physical, mental, or emotional health and development.”
Minn. Stat. § 260C.301, subd. 1(b)(2). Failure to satisfy requirements of a court-ordered
case plan is evidence of a parent’s noncompliance with the duties and responsibilities under
subdivision 1(b)(2). In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003).
The district court concluded that father “engaged in some aspects of the case plan”
but had “substantially neglec ted his parental duties impos ed by the parent-child
relationship.” The district court cited the foll owing as proof that father had neglected his
parental duties: (1) his failure to “adequately engage in supervised visits” where he was

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“absent for substantial periods of ti me . . . with no justifiable excuse;” 5 (2) his failure to
ensure his sobriety because he did not agre e to random drug testing; (3) his failure to
participate in therapy to respond to psychological concerns raised by the parental-capacity
assessment; (4) his failure to secure “established housing, employment, and consistency in
his living situation such that [R.K.U.] coul d be returned to hi s care;” and (5) the
conclusions from the parental-capacity assessmen t identifying that father was “not in a
position to adequately care for [R.K.U.] with significant areas of impairment.”
The district court concluded that father’s “absence and lack of follow-through with
the case plan is evidence of the expected trajectory that he will follow into the future with
[R.K.U.].” Agency documentation and testimony from Dr. Schara, the guardian ad litem,
and the agency employee all support these findings. This statutory basis for termination is
supported by clear and convincing evidence.
B. Failure to Correct Conditions
The district court next concluded that termination was warranted under Minn. Stat.
§ 260C.301, subd. 1(b)(5) and found that the agency “made reasonable efforts to reunify
with [father] but [father] created the situation where much of the efforts were frustrated.”
The district court cited the following rega rding the agency’s reunification efforts:
(1) father “did not maintain contact with the Agency on a consistent basis;” and (2) father

5 The district court credited father’s explan ation for his longest absence after his own
father’s death, but noted that “it is necessary for a parent to continue to act in furtherance
of their parental duties even in the light of substantial tragedies.”

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“never provided an address where he could be found,” so it was “unclear where he actually
reside[d] for any extended period of time.”
The district court concluded that father “appeared unwilling to engage in services”
and that his suspicious beliefs about the intentions of th e agency and th e overall child
protection system did not allow him “to fully engage in services.” Like the first statutory
basis, the district court’s findings regarding fa ther’s lack of particip ation in the agency’s
services are supported by the record thro ugh agency documentation and testimony from
Dr. Schara, the guardian ad litem, and the ag ency employee. This statutory basis for
termination is also supported by clear and convincing evidence.
II. The district court did not abuse its di scretion in determining that termination
was in R.K.U.’s best interests.

Father next argues that the district court abused its discretion in determining that
termination was in R.K.U.’s best interests and contends that no evidence presented at trial
supports any of the best-interests factors. We disagree.
In every termination proceeding, “the be st interests of the child must be the
paramount consideration.” Minn. Stat. § 260C .301, subd. 7 (2016). Even if a statutory
ground for termination exists, the district cour t must still find that termination is in the
child’s best interests. In re Children of T.A.A. , 702 N.W.2d 703, 709 (Minn. 2005). In
doing so, the district court must balance three factors: (1) the child’s interests in preserving
the parent-child relationship; (2) the parent’s interests in preserving the parent and child
relationship; and (3) any competing interests of the child. J.R.B., 805 N.W.2d at 905.

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“Where the interests of parent and child conflict, the interests of the child are paramount.”
Minn. Stat. § 260C.301, subd. 7.
In its analysis of R.K.U.’s best interests, the district court noted: father’s substantial
absences from R.K.U.’s life which prevente d him from establishing a bond with R.K.U.;
father’s inability to respond to R.K.U.’s needs (noting that it did not appear that father’s
behavior would change in the future); the distress R.K.U. was in after visiting with father;
and father’s lack of follow-through with the case plan. The district court found
Dr. Schara’s, the guardian ad litem’s, a nd the agency employee’s observations and
recommendations on the foregoing to be cred ible. The district court’s findings and
conclusions are supported by the clear and convincing evid ence of the observations and
recommendations in the record . The district court did not abuse its discretion in
determining that termination was in R.K.U.’s best interests.
III. The district court did not abuse its discretion in finding that the agency’s
reunification efforts were reasonable.

Finally, father argues that the district cour t abused its discretion in finding that the
agency’s reunification efforts were reasonable because no evidence presented showed that
he failed to comply with the case plan. The district court found that the agency attempted
to work with mother and father throughout the proceedings but that father did not comply
with the case plan “in a manner that would resolve concerns indicated by providers.”
In a termination proceeding, the district court “shall make findings and conclusions
as to the provision of reasonable efforts.” Minn. Stat. § 260.012(h) (2016). Specifically,
the district court must consider whether a county’s reunification efforts were: “(1) relevant

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to the safety and protection of the child; (2) adequate to me et 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. (h)(1)-(6). Additionally , the district court
must make specific findings “that reasonable e fforts to finalize the permanency plan to
reunify the child and the parent were made including individualized and explicit findings
regarding the nature and extent of efforts made by the social services agency to rehabilitate
the parent and reunite the family.” Minn. Stat. § 260C.301, subd. 8(1) (2016). Finally, the
district court must consider “the length of the time the county was involved and the quality
of effort given.” In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review
denied (Minn. July 6, 1990).
The district court made specific findings regarding the agency’s efforts, concluding
that the services it attempted to provide, had father complie d with the case plan, would
have ensured “a system of stability and perman ency that the minor ch ild could return to
that could allow for her development.” The district court’s findings are supported by
documentation in the record of father’s inconsistent and missed visits, missed
appointments, lack of communication, and lack of stable housing and employment. The
district court did not abuse its discretion in finding that the agency’s reunification efforts
were reasonable.
Affirmed.