In the Matter of the Welfare of the Child of: M. A. G. and S. C. G., 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This opinion will be unpublished and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
A18-1032

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

Filed November 13, 2018
Reilly, Judge
Affirmed

Chisago County District Court
File No. 13-JV-17-149

Janet Reiter, Chisago County Attorney, and Jeanine Putnam, Assistant County Attorney,
Center City, Minnesota (for appellant)

Carrie A. Doom, McKinnis & Doom, P.A., Cambridge, Minnesota (for respondent,
M.A.G.)

James F. Schneider, Forest Lake, Minnesota (for respondent S.C.G.)

Kari Seebach, Cambridge, Minnesota (guardian ad litem)

Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Chisago County Health and Human Services (the county) challenges the
district court’s denial of its petition to terminate respondent -mother’s parental rights.
Because the district court did not abuse its discretion in concluding that the county did not
prove a statutory basis by clear and convincing evidence, we affirm.

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FACTS
This case involves one child, J.D.G., born in December 2010 to respondent-mother,
M.A.G., and father, S.C.G.1 On May 4, 2016, the county received a report regarding the
welfare of J.D.G. after local law enforcement arrested M.A.G. in connection with a
burglary and conducted a search warrant at M.A.G.’s residence . During the execution of
the search warrant, officers found J.D.G. left in the care of his maternal uncle, T.G., an
individual recognized by local law enfo rcement to have diminished mental capacity . The
overall living conditions were poor: the home was extremely messy, food in the kitchen
was left out in various stages of decomposition, and the building was structurally unsafe.
Officers discovered methamph etamine and drug paraphernalia in the bedroom which
M.A.G. shared with J.D.G . Based upon this report, the county filed a CHIPS petition
alleging J.D.G. to be in need of protective services.
On June 13, 2016, M.A.G. admitted that J.D.G. needed protective s ervices and an
out-of-home placement plan was filed. The out -of-home-placement plan required that
M.A.G. complete a chemical dependency assessment and comply with its
recommendations, complete a mental health assessment and comply with its
recommendations, comply with random drug testing, report use of any prescribed
medications or changes thereof, complete a parenting education course, locate appropriate
housing for herself and her child, find employment, and complete a domestic violence
assessment and/or participate in domestic violence education services.

1 Because S.C.G. voluntarily terminated his parental rights in December 2017, he is not a
part of this appeal.

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Since June 2016 , J.D.G. has been placed with non-relative foster care provider s,
S.M. and C.M. The foster parents reported that when J.D.G. first arrived , J.D.G. had
tantrums multiple times a day—lasting between 30 to 45 minutes—where he threw himself
on the floor, hit his head against the wall, or hit, kick ed, and scratched himself or others.
At that time, J.D.G. was diagnosed with post -traumatic stress disorder (PTSD) and
provisionally diagnosed with autism.
Shortly after the county removed J.D.G. from M.A.G.’s care, supervised telephone
calls between the two began. J.D.G.’s foster mother , S.M., testified that during these
telephone conversations, which lasted 5 to 10 minutes, J.D.G. told M.A.G. that “he loved
her and missed her.” M.A.G. missed some of the scheduled telephone calls because “she
lost her phone” or “her phone wasn’t working.” If J.D.G. knew about a missed telephone
call with M.A.G., J.D.G. had a “meltdown” or “sulk[ed] for a while afterwards and ask[ed]
to be left alone or sit in his room.”
On May 31, 2016, M.A.G. pleaded guilty to felony aiding and abetting burglary and
was sentenced on July 28 to 180 days in jail. Due to M.A.G.’s custody status, the telephone
calls between M.A.G. and J.D.G. stopped until the county social worker purchased a phone
card for M.A.G. to use from the jail. In September 201 6, approximately two weeks after
the supervised telephone calls resumed, M.A.G. requested to stop the telephone calls with
J.D.G. due to her concerns that J.D.G. could hear other inmates in the background. Shortly
after M.A.G.’s release from jail in October 2016, supervised telephone calls resumed.
In January and February of 2017, M.A.G. received both a chemical dependency
(CD) assessment and mental health assessment through Canvas Health which

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recommended out-patient treatment. The county was concerned about Canvas Health’s
out-patient recommendations because prior CD and mental health assessments had
recommended in-patient treatment.2 As a result of M.A.G.’s progress on her case plan,
beginning in February 2017, M.A.G. and J.D.G. had weekly two-hour supervised in-person
visitations. According to S.M., J.D.G. “was always really excited to have the visits,” he
“really enjoyed seeing [M.A.G.]” and “enjoyed spending time with her.”
But M.A.G. had some trouble attending the visits. In February and March of 2017,
M.A.G. attended most of the visits, and “maybe missed one” each month. In April 2017,
the visits were lengthen ed to three hours ; however, M.A.G. missed more visits than the
prior months. In May 2017, M.A.G. appeared for only one visit with J.D.G., and since she
arrived 45 minutes late to that visit, it had to be cancelled. The county spoke with M.A.G.
about the importance of visitation consistency and warned that if M.A.G. missed another
scheduled visit, her visits with J.D.G. could be cancelled.
On May 9, 2017, the county filed a petition to terminate M.A.G.’s parental rights
(TPR) based upon neglect of parental duties, palpable unfitness, and inability to correct

2 During the course of this c ase, M.A.G. received multiple CD and mental health
assessments. While in custody, M.A.G. completed a CD assessment which recommended
M.A.G. complete a dual-diagnosis residential treatment program to simultaneously address
her chemical dependency and mental health iss ues. While serving her sentence , she was
denied a furlough to enter a dua l-diagnosis treatment program. In October 2016, after
M.A.G.’s release from jail , M.A.G. completed a second CD assessment which
recommended, among other things, that M.A.G. complete a “residential based or similar
treatment program.” Then in November 2016, M.A.G. completed a mental health
assessment which recommended dual-diagnosis inpatient treatment for the following
diagnoses: (1) bipolar II disorder; (2) generalized anxiety diso rder, (3) attention -deficit
hyperactivity disorder, (4) obsessive -compulsive disorder; and (5) other psychoactive
substance dependence.

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conditions which led to placement. See Minn. Stat. § 260C.301, subd. 1 (b)(2), (4), (5)
(2016). Trial was not held until almost one year later on April 17, 2018, and May 1 -2,
2018.
In June 2017, M.A.G. successfully completed her CD treatment program. At that
time, J.D.G.’s GAL reported that the supervised visits between M.A.G. and J.D.G. were
“mostly consistent,” though M.A.G. did miss a few visits due to “transportation issues and
back pain.” In July 2017, M.A.G. missed two more visits with J.D.G. If J.D.G. knew that
visits were scheduled but missed, “he would ask repeatedly why they were being missed.”
S.M. stopped telling J.D.G. about visits with M.A.G. until they got into the car “just in case
[they] weren’t going to have a visit” so that he did not get upset.
In August 2017, J.D.G.’s therapist, wrote a letter expressing her concerns regarding
the consistency of visits between M.A.G. and J.D.G. in light of his work to “process
through past trauma and the uncertainties of his future,” and made the following
recommendation:
[I]t is my clinical recommendation that [J.D.G.] need [s]
consistent, structured, and supportive parenting, including
follow-through. When this does not occur, it is detrimental t o
his mental and emot ional health and overall well -being and
functioning. If parental relationships, including parental visits,
are not consistent, structured, and supportive, it is my clinical
recommendation that they be suspended at this time.

Based up on the August 2017 recommendation from J.D.G.’s therapist , the county
suspended M.A.G.’s visitation. After visitation was suspended, J.D.G. started exhibiting
sexually inappropriate behaviors in the bathroom at school, “showing his privates to the

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other kids” and “peeping into the stalls,” which raised red-flags regarding potential sexual
abuse.
While living with his foster parents, J.D.G. received therapy around once a week
and, in addition, a skills worker met J.D.G. at home every Tuesday. In the summer of
2017, J.D.G. completed a new diagnostic assessment which ruled out autism because of
his progress. J.D.G.’s GAL reported that J.D.G. “continues to thrive in the current non -
relative placement” and asked “if [his] current foster parents can adopt him.”
Although M.A.G.’s first mental health treatment program discharged M.A.G.
because she “was unable to stay within attendance guidelines,” in September 2017, M.A.G.
entered a second mental health treatment program through Nystrom & Associates. M.A.G.
successfully completed the Nystrom mental health treatment program on September 21,
2017. Nystrom recommended that M.A.G. continue to see a therapist and a psychiatrist.
M.A.G. followed through with regard to seeing a therapist, but ha d not seen a psychiatrist
as of the termination hearing.
At a hearing before the district court in September 2017, M.A.G.’s attorney
addressed the suspension of visitation and requested that visits be reinstated. M.A.G.’s
attorney reasoned that “visitation and seein g how visits are going and that bond is an
important component to looking at whether or not reunification is possible.” The district
court expressed concern, but left the decision regarding visitation to the county based upon
consultation with J.D.G.’s GA L and therapist. The district court found that “the county
continues to make reasonable efforts.”

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In October 2017, J.D.G.’s therapist wrote a letter to the court cont inuing her
recommendation of no contact between M.A.G. and J.D.G.:
I have observed and received reports from both his school and
his foster parents, his mental health symptoms increase and his
overall functioning decreases exponentially . . . when
[J.D.G.]’s mother would be inconsistent both in her attendance
at visits, as well as in her behav iors during the visits. They
appeared to be more detrimental to [J.D.G.] than they were
beneficial for attachment. Since [J.D.G.] has ceased contact
with his mother in August, his ability to process the trauma he
has experienced in the past has increased markedly . . . It is my
recommendation that at this time it is best for [J.D.G.]’s mental
health to continue to have no contact with his mother.

At the October review hearing, the district court determined that contact between
M.A.G. and J.D.G. shall be “arranged through and [as] deemed appropriate by [the county],
the [GAL], and the child’s therapist.”
In January 2018, J.D.G. disclosed that his maternal uncle, T.G., touched him “on
his penis and on his butt” and T.G. exposed himself to J.D.G. A county investigator
investigated the sexual assault allegations. During that investigation she scheduled a time
to meet M.A.G., but M.A.G. did not show up. When the investigator and M.A.G. finally
met, M.A.G. cooperated with the investigation. At the conclusio n of the investigation
determinations were made against T.G. for sexual abuse and against M.A.G. based on
failure to protect J.D.G. and failure to provide adequate supervision.
Again, in January 2018, J.D.G.’s therapist wrote to continue her recommendation
that there be no contact with J.D.G.’s biological family. On February 1, 2018, the district
court judge presided over a review hearing. The district court’s order stated that M.A.G.’s
attorney “requested at least the rapeutic visitation between the mother and child at a

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minimum.” The court ordered that M.A.G. “shall be entitled to reasonable therapeutic
contact with the child as approved by the therapist and arrange d through the [county].”
According to J.D.G.’s therapist, since J.D.G. disclosed the sexual abuse, he ha d a lot of
anger toward his biological mother, and he need ed to “heal some of that anger prior to
introducing [M.A.G.] back into his life.” Despite M.A.G.’s continued efforts to work on
compliance with her case plan, visits were not resumed.
At trial, J.D.G.’s therapist testified that based upon M.A.G.’s engagement in
sessions, the fact that J.D.G. identified M.A.G. as “not a safe person,” and that he has been
in foster care for almost two years, M.A.G. “ could not provide the safety, stability and
consistency that [J.D .G.] needs.” The county’s case manager testified that she filed the
TPR petition due to lack of consistency and lack of follow through of the case plan by
M.A.G. At the time of trial , M.A.G. had complied with most of her case plan and there
were no ongoing concerns about domestic v iolence and chemical dependency; however,
the case manager remained concerned that M.A.G. would not follow through in the future
with her mental health issues. J.D.G.’s GAL testified that it is clear that J.D.G. and M.A.G.
love one another, but she was concerned that the progress M.A.G. has made is not on her
own initiative and recommended termination of M.A.G.’s parental rights. M.A.G. testified
that she will support J.D.G. and is committed to addressing her mental health issues.
At the conclusion of trial, the district court found that M.A.G. ha d “substantially
complied with her case plan, engaged in services and has worked to correct the conditions
that led to the out -of-home placement of the child.” The district court dismissed the
termination petition, finding that the county did not prove by clear and convincing evidence

9
that reasonable efforts have failed to correct the conditions leading to the out -of-home
placement, that M.A.G. substantially, continuously, or repeatedly refused t o comply with
the duties imposed upon her from the parent/child relationship, or that M.A.G. is palpably
unfit.
The county now appeals.
D E C I S I O N
“There is perhaps no more grave matter that comes before the court than the
termination of a parent’s relationship with a child.” In re Welfare of A.D ., 535 N.W.2d
643, 647 (Minn. 1995). For this reason, courts must exercise “great caution” in
termination-of-parental-rights cases. Id. (quotation omitted). We review a district court’s
determination on a termination -of-parental-rights petition to determine “whether t he
district court’s findings address the statutory criteria and whether the district court’s
findings are supported by substantial evidence and are not clearly erroneous.” In re
Welfare of Children of S.E.P. , 744 N.W.2d 381, 385 (Minn. 2008). “Considerable
deference is due to the district court’s decision because a district court is in a superior
position to assess the credibility of witnesses.” In re Welfare of Children of B.M ., 845
N.W.2d 558, 563 (Minn. App. 2014) (quotation omitted).
We review the factual findings for clear error and the statutory basis for abuse of
discretion. In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 87 (Minn. App. 2012). “A
finding is clearly erroneous if it is manifestly contrary to the weight of the evidence or not
reasonably supported by the evidence as a whole.” In re Welfare of Children of K.S.F .,
823 N.W.2d 656, 665 (Minn. App. 2012) (quotation omitted). We will not set aside factual

10
findings unless “review of the entire record leaves us with a 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) (quotation omitted).
The burden of proof is on the petitioner and “is subject to the presumption that a
natural parent is a fit and suita ble person to be entrusted with the care of a child.” In re
Welfare of the Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 201 1) (quotation
omitted), review denied (Minn. Jan. 17, 2012). The evidence relating to the termination
must address the conditions that exist at the time of trial. Id. For a district court to terminate
parental rights, at least one statutory ground for termination must be supported by clear and
convincing evidence, and termination must also be in the child’s best interests. B.M., 845
N.W.2d at 562-63. Here, the county sought to terminate M.A.G.’s parental rights under
three different statutory bases.
I.
1. Failure to Correct the Conditions Leading to the Child’s Placement

The county sought to terminate M.A.G.’s parental rights arguing that “reasonable
efforts, under the direction of the court, have failed to correct the conditions leading to the
child’s placement.” Minn. Stat. § 260C.301, subd. 1(b)(5). R easonable efforts are
presumed to have failed if four criteria exist: “(i) a child has resided out of the parental
home under court order for a cumulative period of 12 months within the preceding 22
months”; “(ii) the court has approved an out -of-home placement plan ”; “(iii) conditions
leading to the out -of-home placement have not been corrected ”; and “(iv) reasonable
efforts have been made by the social services agency to rehabilitate the parent and reunite

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the family.” Id. (i)-(iv). The parties do not dispute that the child resided outside of the
home for more than 12 months before trial or that the district court approved an out -of-
home placement plan. The parties do dispute whether the county provided reasonable
efforts and whether M.A.G. corrected the conditions leading to foster care.
Reasonable Efforts
During a termination of parental rights proceeding, the district court must determine
whether a county made reasonable efforts to reunite the parent with their child. In re
Welfare of Children of T.R., 750 N.W.2d 656, 664 (Minn. 2008). Reasonable efforts are
“services that go beyond mere matters of form so as to include real, genuine assistance.”
In re Welfare of Children of S.W. , 727 N.W.2d 144, 1 50 (Minn. App. 2007) (quotation
omitted), review denied (Minn. Mar. 28, 2007). In order to determine whether efforts were
reasonable, the district court must determine whether the services offered 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 a ccessible; (5) consistent and
timely; and (6) realistic under the circumstances. ” Minn. Stat. § 260.012(h) (2016).
“Whether the county has met its duty of reasonable efforts requires consideration of the
length of time the county was involved and the qua lity 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).
We conclude, based on our review of the record, that the district court’s finding that
the county did not make reasonable efforts is supported by the requisite substantial
evidence and is not clearly erroneous. The district court found that “the county’s effort fell
short” when the county stopped supervised visitation between M.A.G. and J.D.G. because

12
of M.A.G.’s “lack of compliance with [her] case plan and because of the child’s excitement
after visiting his mother.” The district court made the following factual findings:
The court is highly critical and surprised that the County did
not reinstate supervised visitation/calls even a fter [M.A.G.]
progressed with compliance with her case plan. The parties
testified that [J.D.G.] was excited to see his mother during
visitations. The parties testified that [M.A.G.] would send a
message if she was to miss a visit and would reschedule.
[M.A.G.]’s visitation should not have been suspended as the
circumstances were not compelling enough. The suspension
of visitation was not relevant to the safety and protection of the
child, as the visitations were supervised, and did not meet the
needs of the family. The County’s efforts of suspending
visitations/phone calls were not aimed at alleviating the
conditions that gave rise to out -of-home-placement or
conforming to the problems presented. Although the Court
commends the County for providing vari ous services to
[M.A.G.], the Court finds that the County’s efforts to reunite
[M.A.G.] and [J.D.G.] were not reasonable.

(quotation and citations omitted). The prolonged suspension is particularly unreasonable
because the county is asserting that M.A.G.’s inconsistency requires termination of her
parental rights, but has not allow ed M.A.G. to demonstrate an ability to parent J.D.G.
through visitation. At the time of trial, v isitation had been suspended for approximately
eight months. We are not concluding that the child’s mental health should not be a fact or
in suspension of visitation; however, we agree with the district court’s determination that
the circumstances in this case “were not compelling enough.”
Failure to Correct Conditions
The conditions that led to J.D.G.’s out -of-home placement were substance use and
exposure of J.D.G. to drug use and drug p araphernalia. At the time of trial, M.A.G. had
successfully completed CD treatment. According to the county case manager, M.A.G. has

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complied with most of her case plan , there are no ongoing concerns about chemical
dependency, and she believe s M.A.G. will maintain sobriety. Therefore, the record
supports the district court’s finding that M.A.G. corrected the substance abuse concerns.
The county contends that “even if the parent eliminates the factual bases that existed
at the time of the child’s removal, if a new factual basis arises after removal, the condition
cannot be corrected until that new factual basis also has bee n eliminated.” In re Welfare
of Child of D.L.D. , 865 N.W.2d 315, 323 (Minn. App. 2015), review denied (Minn. July
21, 2015). The county argues that the conditions leading to the out -of-home placement
have not been rehabilitated because M.A.G. is not employed, has not consistently engaged
with her mental health providers, and has not developed the ability to care for J.D.G.’s
mental health needs.
However, at the time of trial, M.A.G. had obtained her driver ’s license and was
working with the RISE agency in order to obtain employment. The county argues that
M.A.G.’s attendance with the RISE agency was not adequate , but e ven if M.A.G.’s
attendance was questionable, lack of employment does not rise to “grave” conditions to
terminate M.A.G.’s parental right s. See In re Welfare of M.D.O ., 462 N.W.2d 370, 375
(Minn. 1990) (“Parental rights are terminated only for grave and weighty reasons .”). The
county case worker testified that lack of employment was not a basis for terminating
parental rights. Additionally, at the time of trial, M.A.G. was working with a therapist at
Family Based Therapy Associates. That therapist wrote a letter which stated that M.A.G.
had maintained consistency and follow ed through with her scheduled appointments, ha d
provided valid reasons for cancellation or missed appointments, and was working on skills

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to improve communication, consistency, and daily routine. M.A.G. testified that she has a
good relationship with her therapist and her adult mental health worker.
It is not M.A.G.’s burden to prove that she can meet J.D.G.’s needs, rather, it is the
county’s burden to prove , by clear and convincing evidence, that even with the county’s
provision of reasonable efforts, M.A.G. could not correct the conditions that led to out-of-
home placement. Given the prolonged suspension of visitation in this case, the county is
asking this court to speculate, and extrapolate from M.A.G.’s attendance issues, that
M.A.G. is ill-equipped to care for J.D.G.’s mental health needs. However, we will not set
aside factual findings unless review of the entire record leaves us with a “definite and firm
conviction that a mistake has been made.” D.T.J., 554 N.W.2d at 107 (quotation omitted).
Because evidence exists in the record showing that M.A.G. made substa ntial steps
to address concerns regarding her CD and mental health issues, the district court did not
abuse its discretion in concluding that the county did not prove by clear and convincing
evidence that she failed to correct the conditions leading to the out-of-home placement.
2. Failure to Comply with the Duties Imposed by the Parent and Child
Relationship

The county sought to terminate M.A.G.’s rights arguing that:
the parent has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon
that parent by the parent and child relationship, including but
not limited to providing . . . other care and control necessary
for the c hild’s physical, mental, or em otional health and
development . . . and either reasonable efforts by the social
services agency have failed to correct the conditions that
formed the basis of the petition or reasonable efforts would be
futile and therefore unreasonable.

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Minn. Stat. § 260C.301, subd. 1(b)(2). This statutory basis also requires that the county
make reasonable efforts. Because we have already determined that the district court did
not err in its determination that the county did not make reasonable efforts in this case, and
it is undisputed that the efforts necessary to assist M.A.G. fulfill her parental duties are the
same efforts necessary to correct the conditions leading to the out-of-home placement, this
court is not required to continue its analysis . However, in the interests of completeness,
we will address this statutory basis. See Minn. R. Civ. App. P. 103.04 (stating that appellate
courts may address matters in the interests of justice).
To terminate parental rights under this statutory basis the district court must find
that “at the time of termination, the parent is not presently able and willing to assume [their]
responsibilities and that the parent’s neglect of these duties will continue for a prolonged,
indeterminate period.” J.K.T., 814 N.W.2d at 90 (quotation omitted). Here, the district
court found that the county did not prove that M.A.G. substantially, con tinuously, or
repeatedly failed to comply with the duties imposed upon her because M.A.G. “has
substantially complied with her court-ordered case plan and is presently able to assume the
responsibilities of caring for [J.D.G.].”
The county argues that the district court’s finding that M.A.G. was in substantial
compliance with her case plan is incomplet e because “it failed to address when M.A.G.
began complying, the extent of her compliance, and how long she had maintained
compliance before trial.” The county cites In re Welfare of D.C ., to assert that minimal
cooperation by a parent shortly before trial is not enough to avoid termination of parental
rights. 415 N.W.2d 915, 918 (Minn. App. 198 7). U nlike the facts presented in D.C.,

16
M.A.G.’s compliance was not limited to the few weeks leading up to trial because M.A.G.
had demonstrated successful completion of CD treatment approximately ten months prior
to trial, prolonged sobriety, and had been working with mental health professionals for
approximately six months leading up to trial. The county further argues that M.A.G.’s
substantial compliance is not supported by the record because she “did not begin to comply
with major components of her case plan until well after the TPR petition was filed, and
after the child had been in foster care for well over a year.” However, the evidence relating
to the termination must address the conditions that existed at the time of trial. B.M., 845
N.W.2d at 564. In its order, the district court determined the following:
(1) M.A.G. addressed domestic violence concerns by creating
a safety plan;
(2) M.A.G. addressed mental health concerns by completing
various mental health assessments and attending individual
therapy;
(3) M.A.G. completed a parenting class;
(4) M.A.G. has completed various Rule 25 assessments and has
completed various treatments at Canvas Health and Nystrom
and Associates, and
(5) M.A.G. has been working with the RISE agency to obtain
employment.

The district court further stated that M.A.G.’s mental health case manager has no concerns
about M.A.G.’s completion or engagement in her programs and services , and the county
case worker has no concerns about M.A.G.’s sobriety or domestic violence . There are
sufficient facts in the record to support the determ ination that M.A.G. has substantially
complied with her case plan.
Second, the county argues that regardless of M.A.G.’s compliance with her case
plan, the record does not support a finding that M.A.G. can assume responsibility for caring

17
for J.D.G. “The critical issue is not whether the parent formally complied with the case
plan, but rather whether the parent is presently able to assume the responsibilities of caring
for the child.” J.K.T., 814 N.W.2d at 89. While the district court determined t hat it had
concerns about whether M.A.G. “will ever be able to demonstrate that she has the
capability to parent her child ,” having a great concern about whether a parent will
successfully parent in the future is not necessarily proof by clear and convincing evidence
that the parent is unable at present to assume the responsibilities of caring for a child.
The county asserts that the district court erred in its finding that M.A.G. “is presently
able to assume the responsi bilities of caring for [J.D.G.] ” because it failed to address
barriers to reunification , including J.D.G.’s special needs and M.A.G.’s failure to
demonstrate insight into J.D.G.’s specific needs. We reject this argument for two reasons.
First, M.A.G.’s insight into J.D.G.’s specific needs would have been further explored
through the county’s reasonable efforts to reunite the family. The county, however, failed
to make those efforts. Therefore, we decline to rule that the district court should have held
M.A.G.’s alleged inadequacies on these points against her. Second , given the county’s
failure to make reasonable efforts to reunite the family, and the fact that this failure is fatal
to the district court’s ability to terminate parental rights under this provision of the statute,
the county is functionally arguing that the district court erred or abused its discretion by
not including in its order a significant amount of dictum. Thus, even if the district court
was required to consider these matters, we would decline to rule that th e district court’s
failure to address these matters was fatal to the district court’s decision.

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3. Palpable Unfitness

The county sought to terminate M.A.G.’s parental rights arguing that:
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
parent and child relationship either of which are determined by
the court to be of a duration or nature that renders the pa rent
unable, for the reasonably foreseeable future, to care
appropriately for the ongoing physical, mental, or emotional
needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4). The county argues that the district court erred in
determining that the co unty failed to present sufficient evidence that M.A.G. is palpably
unfit to parent this child, reasoning that the district court did not analyze whether M.A.G.
is able to care for a child who has been diagnosed with PTSD. The county cites In re
Welfare of D.D.K., where this court made a distinction between ability to parent an average
child and ability to parent a special needs child. 376 N.W.2d 717, 721 (Minn. App. 1985).
Though we agree that J.D.G. has special needs due to his PTSD diagnosis, this case is
otherwise distinguishable from D.D.K. I n D.D.K., this court affirmed the trial court ’s
determination that the mother was unable t o parent a “special needs child,” because the
mother “ failed to complete either parenting class es or individual counseling ” and
discontinued visitation. Id. Here, however, the district court found that M.A.G. has
“maintained her sobriety” and “is aware of her mental health issues and is working on those
issues.”
The county also argues that M.A.G. is “unable to demonstrate a n ability to be
consistent and reliable, particularly when it comes to the child’s needs such as visitation

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and engaging with his therapist.” The record establishes that J.D.G. is in need of continued
consistent services and that his mental health and behavioral struggles have improved. The
visitation was suspended, wrongly in the district court’s determination, preventing M.A.G.
from demonstrating an ability to be consistent and reliable. During the twenty-two months
of out -of-home placement, supervised visits were facilitated for approximately five
months. Therefore, the district court did not abuse its discretion by ultimately concluding
that the county did not prove by clear and convincing evidence that M.A.G. was palpably
unfit.
II.

Since the district court did not err in its determination that the county did not prove
a statutory basis by clear and convincing evidence, we need not proceed in our analysis.
However, because “the best interests of the child must be the paramount consideration” in
a termination case, we will briefly address the district court’s best-interest analysis. Minn.
Stat. § 260C.001, subd. 2(a) (2016).
Analyzing the best interests of a child requires a balancing of the child’s interest in
preserving a parent-child relationship, the parent’s interest in preserving that relationship,
and any competing interest of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn.
App. 1992); see Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3). “Competing interests include
such things as a stable environment, heal th considerations and the child’ s preferences.”
R.T.B., 492 N.W.2d at 4. We review the district court’s determination that termination is
in the best interests of the child for an abuse of discretion. J.R.B., 805 N.W.2d at 905.

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The county argues that the district court failed to conduct a sufficient best -interest
analysis because it did not properly address valid competing interests, including: (1) the
child’s competing interest in developing a parent/child relationship with a safe, stable and
reliable caregiver; (2) the child’s competing interest in receiving regular mental health
services; and (3) the child’s competing interest in achieving a permanent placement at the
earliest possible time. While we agree that the competing interests raised by the county
could have been considered by the district court , “[e]ven if the record might support
findings different from those made by the court, this does not show that the court’s findings
are defective.” In re Welfare of Child of J.L.L., 801 N.W.2d 405, 414 (Minn. App. 2011).
The district court found: (1) “[J.D.G.] loves his mother and his mother loves him”; (2)
J.D.G. “appears to have an interest in maintaining a relationship with his mot her; (3)
M.A.G. “appears to love her son and wants to be reunited with him”; and (4) that “[t]he
competing interest in this matter might be [M.A.G.’s] mental health which [she] is actively
working on as she is in counseling.” The district court found that it is in the best interests
of J.D.G. that reunification between J.D.G . and M.A.G. be a “slow process” that “should
progress based upon therapeutic recommendations and J.D.G.’s response.” From our
review of the record, we conclude that the district court made credibility determinations,
properly weighed facts in evidence, and reasonably came to its conclusion regarding
J.D.G.’s best interests.
III.
While we affirm the district court’s order, we are concerned that the TPR trial and
order in this case occu rred well outside the permanency timelines provided by rule and

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statute. See Minn. Stat. §§ 260C.503, .507, .509 (2016) (providing an admit/deny hearing
must occur by 12 months after the children are removed from home and TPR trial must
commence 60 days after admit/deny hearing ); accord Minn. R. Juv. Prot. P. 4.03, subd.
3(c), 33.05, subd. 2, 34.02, subd. 1(b), 39.02. We recognize that the matter was continued
many times due to failed service on the father and the county’s investigation into the
sexual-abuse allegations.3 However, at this point, J.D.G. has languished over two years in
the limbo of out-of-home placement and deserves permanency in his life . Cases like this
demonstrate why courts must be aware of these deadlines and follow them.
In addition, the district court expressed concern that M.A.G. did not identify the
“red flags of leaving [J.D.G.] alone with [T.G.] even though she was warned by her mother
about [T.G.’s] interaction with children.” We share the district court’s concern, and
support its decision to order that T.G. have no contact with J.D.G.
Further, we note that the district court expressed its concern about whether M.A.G.
would “ever” be able to successfully parent J.D.G. Given this concern, as well as the length
of time J .D.G. has been in an out -of-home placement where he is thriving with foster
parents who want to provide a permanent family for him, if any red flags develop in the
future the county may want to consider the possible propriety of filing another permanency

3 We are troubled with the decision to continue this case on the eve of the January 2018
trial date. The TPR filed May 9, 2017—eight months before the January 2018 trial date—
alleged that M.A.G. had “substantially, continuously, or repeatedly refused or neglected to
comply with the duties imposed” by the parent -child relationship. Assuming the county
believed that sufficient evidence supporting a TPR petition existed in May 2017, we are
puzzled why additional allegations which presumably point to “neglect” of “duties imposed
upon the parent” resulted in a required further continuance of an already delayed case.

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petition, and, if another petition is proper, to do so expeditiously. If a petition is filed, we
caution the district court to actively and continuously oversee this case until J.D.G. is in a
permanent home.
Because the district court did not abuse its discretion when it determined that the
statutory bases put forth by the county during trial were not proven by clear and convincing
evidence, and the county did not make reasonable efforts for reunification of M.A.G. and
J.D.G., we affirm.
Affirmed.