A18-1027

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0949
A18-1027

In the Matter of the Welfare of the Child of:
T. E. B. and D. A. H., Parents.

Filed January 7, 2019
Affirmed
Klaphake, Judge*
Concurring specially, Rodenberg, Judge

Pine County District Court
File No. 58-JV-18-11

Anne M. Carlson, Anne M. Carlson Law Office, PLLC, St. Paul, Minnesota (for appellant-
mother T.E.B.)

Michael K. Pepin, Michael K. Pepin Law Offices, Pine Springs, Minnesota (for appellant-
father D.A.H.)

Reese Frederickson, Pine County Attorney, Sydney Silko, Assistant County Attorney, Pine
City, Minnesota (for respondent Pine County Health and Human Services)

Cynthia Bell, Pine City, Minnesota (guardian ad litem)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; 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
KLAPHAKE, Judge
In these consolidated appeals, appellants T.E.B. (mother) and D.A.H. (father) appeal
from the district court’s order terminating parental rights to their child, H.D.H. Appellants
argue that the district court erred by terminating their parental rights because they met the
burden of production necessary to rebut the presumption of palpable unfitness under Minn.
Stat. § 260C.301, subd. 1(b)(4) (2018). Appellants also argue that the county did not
present clear and convincing evidence of palpable unfitness. Father argues that the district
court erred by finding that termination is in the child’s best interests. We affirm.
D E C I S I O N
We review the district court’ s findings of the underlying or basic facts fo r clear
error, but its ultimate determination of whether a particular statutory basis for involuntarily
terminating parental rights is reviewed 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. 6, 2012).
The district court based its decision to terminate appellants’ parental rights on findings that
appellants were palpably unfit to be parties to the parent -child relationship and the
conclusion that termination of parental rights was in the best interests of H.D.H.
1. Palpable unfitness
Parental rights may be terminated if there is clear and convincing evidence:
[T]hat a parent is palpably unfit to be a party to the parent and
child relationship because of a consistent pattern of specific
conduct before the child or of specific conditions directly
relating to the . . . relationship . . . that renders the parent
unable, for the reasonably foreseeable future, to care

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appropriately for the ongoing physical, mental, or emotional
needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4). “It is presumed that a parent is palpably unfit to be
a party to the parent and child relationship upon a showing that the parent’s parental rights
to one or more other children were involuntarily terminated. . . . ” Id. “The petitioning
party bears the burden of proving palpable unfitness by clear and convincing evidence. ”
In re Welfare of J.W., 807 N.W.2d 441, 445 (Minn. App. 2011), review denied (Minn. Jan.
6, 2012); see also Minn. Stat. § 260C.317, subd. 1 (2018).
When seeking to terminate parental rights due to palpable unfitn ess, the petitioner
must prove “specific conditions existing at the time of the hearing that appear will continue
for a prolonged, indefinite period and that are permanently detrimental to the welfare of
the child.” J.W., 807 N.W.2d at 446 (quotation omitted).
Here, the county’s petition alleged that appellants were palpably unfit to be parties
to the parent-child relationship because both appellants previously had their parental rights
to other children involuntarily terminated. Accordingly, the county was not required to
provide reasonable efforts for rehabilitation and reunification. See In re Welfare of
D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003) (“Upon a district court’s determination
that a person’s parental rights to another child previously have been termi nated
involuntarily, reasonable efforts for rehabilitation and reunification are not required.”); see
also Minn. Stat. § 260.012(a)(2) (2018). Appellants argue that they rebutted the
presumption of palpable unfitness because they met the burden of production under J.A.K.
See In re Welfare of J.A.K., 907 N.W.2d 241, 246 (Minn. App. 2018) (stating that to rebut

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the statutory presumption of palpable unfitness, the parent’s evidence need only create a
“genuine issue of fact”), review denied (Minn. Feb. 26, 2018). We review de novo a district
court’s determination as to whether a parent’s evidence is capable of justifying a finding
in his or her favor at trial. Id. But because the county presented clear and convincing
evidence of appellants’ palpable unfitness, we need not decide whether appellants rebutted
the presumption. See J.W., 807 N.W.2d at 447 (noting that once a party has successfully
rebutted the presumption, the burden of persuasion shifts back to the county to prove
palpable unfitness by clear and convincing evidence).
Appellants called several witnesses during the termination trial, but neither
appellant presented evidence that they enrolled in parenting classes or addressed their
mental-health concerns. In contrast, the county presented evidence that although appellants
have made positive changes, there were still concerns with their ability to parent and
provide basic care to an infant. The district court found that “[m]other’s choice to take an
old Percocet while pregnant without co nsulting her physician demonstrates [that] she is
unable to understand the consequences of her actions” and noted that it “does not feel [that]
the child would be safe in her care.” The district court also found that “[t]here is no credible
evidence in this record that [f]ather has appropriately addressed his chemical dependency,
his anger and control issues, his propensity to commit domestic vio lence, or his lack of
empathy.”
The district court’s detailed findings address mother and father’s personal hi story,
visits between appellants and the child, trial testimony, and the district court’s credibility
determinations. The record supports the district court’s findings and its determination that

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the county presented clear and convincing evidence that mother and father meet the
statutory criteria of palpable unfitness.
2. Best interests of the child
Father also argues that the district court erred in finding that termination of parental
rights was in t he best interests of the child. We review a district court’s best -interests
determination for an abuse of discretion. J.R.B., 805 N.W.2d at 905. When analyzing a
child’s best interests, the court must consider the child’s interest in preserving the pare nt-
child relationship, the parent’s interest in preserving the parent-child relationship, and any
competing interest of the child. Id. “Competing interests include such things as a stable
environment, health considerations and the child’s preferences.” Id. (quotation omitted).
“Because the best-interests analysis involves credibility determinations and is generally not
susceptible to an appellate court’s global review of a record, we give considerable
deference to the district court’s findings.” In re Welfare of Child of J.K.T., 814 N.W.2d
76, 92 (Minn. App. 2012) (quotation omitted).
The district court found that mother and father’s relationship continues to pose a
safety risk to the child and noted the guardian ad litem’s testimony that the child is
flourishing in the child’s current foster home. Termination of appellants’ parental rights
will not necessarily end the parent-child relationship, as the guardian ad litem testified that
a family member expressed interest in adopting the child and allo wing mother and father
to contact the child. We defer to the district court’s best -interests determination because
the record supports that determination.

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Accordingly, we conclude that the district court did not abuse its discretion in finding that
termination is in the child’s best interests.
Affirmed.

CS-1

RODENBERG, Judge (concurring specially)
I concur in the opinion of the court, but write separately to note my concern that, if
a parent successfully rebuts the presumption of palpabl e unfitness under Minn. Stat.
§ 260C.301, subd. 1(b )(4) ( 2018), that parent may have an equal -protection righ t to
reasonable efforts to reun ify despite the provision of Minn. Stat. § 260.012 (2018) to the
contrary. I would not reach that issue here because I am unconvinced that the presumption
of unfitness has been rebutted on these facts, despite the presumption being “easily
rebuttable” under R.D.L. See In re Welfare of Child of R.D.L., 853 N.W.2d 127, 137 (Minn.
2014) (stating that the presumption of palpable unfitness is easily rebuttable).
Although not couched in equal -protection terms, mother argues that, “if [she] met
the burden of production, [she] is entitled to a case plan for the purposes of reunification.”
Mother’s assertion is contrary to the express language of Minn. Stat. § 260.012, but might
find some support in the Minnesota Supreme Court’s jurisprudence.
In R.D.L., the Minnesota Supreme Court considered the constitutionality of the
presumption of paren tal unfitness after an involuntary termination under Minn. Stat.
§ 260C.301, subd. 1(b)(4). 853 N.W.2d at 136. The supreme court upheld the presumption
against an equal -protection challenge, in significant part because it determined that the
presumption is “easily rebuttable.” Id. at 137. A number of earlier opinions of this court
had held that the presumption is not easily rebuttable. See In re Welfare of J.A.K. , 907
N.W.2d 241, 245 n.1 (collecting cases and noting that the R.D.L. opinion stands in contrast
to our previous decisions suggesting that in order to rebut the statutory presumption, a
parent must affirmatively and actively demonstrate his or her ability to parent a child). My

CS-2
reading of R.D.L. convinces me that the supreme court’s determinat ion of the ease with
which the presumption of unfitness can be rebutted was necessitated by the equal -
protection challenge raised in that case. A stronger presumption might well have violated
the parent’s equal -protection rights. Our most-recent post-R.D.L. opinion notes that our
earlier decisions suggesting that the presumption has more weight are now in doubt. Id.
Juxtaposed against R.D.L. is the provision in Minn. Stat. § 260.012(a)(2), dispensing
with the need for the agency to make reasonable efforts to reunify in cases where “a petition
has been filed stating a prima facie case that . . . the parental rights of the parent to another
child have been terminated involuntarily.” Minn. Stat. § 260.012(a)(2). Under section
260.012, all that needs to be shown to dispense with the reasonable -efforts-to-reunify
requirement is that the petition state a prima facie case of a pr evious involuntary
termination. Id.
After R.D.L., it is easy to envision an equal-protection argument that a parent who,
at trial, rebuts the presumption of unfitness should then also be entitled to the same
reasonable efforts toward reunification to which other parents are entitled. If a parent
rebuts the unfitness presumption at trial, then the parent seems to me to be in the same legal
position as a parent who has not had her rights to a previous child involuntarily terminated.
And the reasoning in R.D.L. at least suggests that section 260.012 (a)(2) should be
interpreted to afford reunification efforts to parents who have rebutte d the presumption of
unfitness after a prior involuntary termination.
As I see things, we need not reach that question in this case because, unlike in J.A.K.,
these parents did not rebut the presumption under Minn. Stat. § 260C.301, subd. 1(b)(4).

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To be sure, there is some language in the district court’s termination order that can be read
as suggesting that the district court weighed the evidence presented by the parents when it
should have assumed that evidence to be true under our holding in J.A.K. But, careful
examination of its findings convinces me that the district court was not weighing the
evidence. It was instead focusing on whether the evidence produced here was of the sort
produced in J.A.K. And the district court’s careful and record -supported consideration of
the evidence produced here convinces me that the district court was faithful to the relevant
caselaw authorities. The evidence produced in response to the statutory presumption here
was not of the sort produced in J.A.K., where the mother rebutted the presumption through
evidence that she had consulted with a psychiatrist and begun taking depression
medication, had completed a parenting assessment, was participating in individual and
group therapy and dialectical behavioral thera py, was more clear -headed and gaining
insight on her communication skills, and acknowledged her volatile relationship with the
child’s father. J.A.K., 907 N.W.2d at 246-48.
Had the parents here produced the type of presumption-rebutting evidence produced
in J.A.K., we would be called upon to wrestle with the interplay between Minn. Stat.
§§ 260.012(a)(2) and 260C.301, subd. 1(b)(4), the supreme court’s decision in R.D.L., and
our holding in J.A.K. But the record evidence is insufficient to reach that question here.