In the Matter of the Welfare of the Child of: C. L. H. and K. S. M.

This opinion will be unpublished and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
A18-1167

In the Matter of the Welfare of the Child of:
C. L. H. and K. S. M.

Filed December 17, 2018
Affirmed
Bjorkman, Judge

Grant County District Court
File No. 26-JV-18-78

Kent D. Marshall, Barrett, Minnesota (for respondent C.L.H.)

Matthew P. Franzese, Wheaton, Minnesota (for appellant K.S.M.)

Justin Anderson, Grant County Attorney, Heather L. Brandborg, Assistant County
Attorney, Elbow Lake, Minnesota (for respondent Grant County Social Services)

Dawn Krump, Tintah, Minnesota (guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Stauber,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-father K.S.M. challenges the termination of his parental rights, arguing
that the record does not support a statutory basis for termination and termination is not in

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

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the best interests of the ch ild. Because clear and convincing evidence shows that
reasonable efforts by the county failed to correct the conditions leading to the child’s out -
of-home placement and termination is in the child’s best interests, we affirm.
FACTS
R.S.H. was born in July 2014 to father and C.L.H., who never married. Mother was
the custodial parent from the time of the child’s birth until she voluntarily terminated her
parental rights in May 2018. During that time period, the child was twice placed out of
mother’s home for a total of 415 days.
The child was first removed from mother’s home in October 2015, after mother was
arrested for driving while under the influence of methamphetamine. Police discovered that
mother had left the child with acquaintances, telling them she would “be right back.”
Respondent Grant County Social Services obtained emergency protective custody of the
child, and the district court later adjudicated him to be in need of protection or services
(CHIPS). The county developed case plans req uiring mother to complete in-patient drug
treatment and father to participate in parenting time. Father neither sought nor received
other services at that time . A lthough he attended some parenting-time sessions with the
child, the county was unable to reach him on numerous occasions. The child was reunited
with mother after 314 days in out-of-home placement.
On February 26, 2018, the county again became involved with the family when no
one picked up the child from preschool. Law enforcement officers conducted a welfare
check at mother’s home, discovered she was under the influence of controlled substances,
and were unable to reach father or anyone else who could care for the child. The county

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initiated a second CHIPS proceeding. The petition cites mother’s June 2017 report to the
county that father “had been driving [the child] around in a vehicle without being buckled
in a car seat,” “without a driver’s license,” “was using drugs ,” “and . . . hit [the child].”
Mother also reported “that she was concerned about unsupervised visits between [father]
and the [c]hild ” and “was concerned about [father’s] sobriety, and reported that [father ]
had hit [the] [c]hild.”
In March 2018, t he district court adjudicated the child CHIPS. The district court
appointed a guardian ad litem and directed father to comply with a case plan that required
him to (1) “submit to observed, random [drug testing]”; (2) upon a positive drug test result,
“complete a Rule 25 [drug] [a]ssessment and follow all recommendations” ; (3) keep in
“regular contact” with the county; and (4) “maintain regular contact/visits with [the child].”
The district court expressly conditioned father’s parenting time on drug testing. Soon after,
the county petition ed to terminate both father’s and mother’s parental rights. The
termination petition alleges that “following the child’s placement out of the home,
reasonable efforts . . . failed to correct the conditions leading to the child’s placement.”
Minn. Stat. § 260C.301, subd. 1(b)(5) (2018).
The termination trial took place in June 2018. Evidence adduced at trial shows that
between March and May 2018, father completed only one of 12 requested drug tests. The
results of the single test “quick -tested positive for methamphetamine, amphetamine, and
THC,” but later analysis yielded concentration levels too low to qualify as positive. The
district court rejected father’s assertion that he did not receive voicemail testing requests
from the county, stating that he “always had a telephone” and “returned certain calls but

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not others.” And t he district court discounted the chemical assessor’s opinion that
treatment was unnecessary because father told the assessor he only used a controlled
substance once and provided only one collateral reference—a 90-year-old neighbor with
whom father had only occasional contact.
In addition, father did not maintain contact with either the county caseworker or the
guardian ad litem. Father never responded to any of the guardian ad litem’s efforts to reach
him, and he scarcely communicated with his caseworker. Because of father’s minimal
case-plan compliance, the county was unable to offer services such as parenting education,
additional parenting time, and family counseling. Father does not challenge the district
court’s finding that he has never had custody of the child.
At the conclusion of the trial, the district court found clear and convincing evidence
that the child resided out of the home for more than six months, f ather failed to maintain
regular contact with the child or comply with his case plan, the county’s reunification
efforts were reasonable, and father “failed to correct the conditions that led to [c]hild’s out-
of-home placement.” The court further found that termination is in the child’s best interests
because father was unable to complete basic parenting tasks, had not proven himself to be
a viable parenting option, the statutory permanency requirements had expired , and “the
best interests demand[ed] [the] [c]hild be given a stable life elsewhere.” Father appeals.
D E C I S I O N
An appellate court reviews an order that terminates parental rights “to determine
whether the district court’s findings (1) address the statutory criteria and (2) are supported
by substantial evidence.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 87 (Minn. App.

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2012). We defer to the district court’s exercise of discretion but closely assess whether the
evidence is clear and convincing. In re Welfare of Children of S.E.P. , 744 N.W.2d 381,
385 (Minn. 2008). “We will affirm the district court’s termination of parental rights 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 A.R.B., 906 N.W.2d 894, 897 (Minn.
App. 2018).
I. The district court did not abuse its discretion by determining that reasonable
efforts failed to correct the conditions t hat led to the child’s out-of-home
placement.

A district court may terminate parental rights if clear and convincing evidence
shows that reasonable efforts have failed to correct the conditions leading to the child’s
out-of-home placement. Minn. Stat. § 260C.301, subd. 1(b)(5). It is presumed that
reasonable efforts have failed upon a sho wing that (1) a child under age eight has resided
outside the parental home for six months , (2) the court has approved an out -of-home
placement plan, (3) the conditions leading to the child’s out -of-home placement have not
been corrected, and (4) the social services agency made reasonable efforts to rehabilitate
and reunite the family. Id. It is also presumed that the conditions leading to out -of-home
placement have not been corrected upon a showing that a parent ha s “not substantially
complied with the court’s orders and a reasonable case plan.” Id., subd. 1(b)(5)(iii).
Father challenges the district court’s determinations as to the third and fourth
factors—that the conditions leading to the out-of-home placement have not been corrected
and the county made reasonable efforts to reunite him with the child . The essence of

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father’s argument is that (1) his case plan was not reasonable because the district court had
no basis to require him to submit to drug testing and (2) the county’s reasons for removing
the child related to mother’s drug use and resulting neglect of the child rather than anything
related to him. We are not persuaded.
First, t he record reveals a consistent thread of evidence supporting the district
court’s concerns about father’s drug use. Indeed, father did not challenge the district
court’s finding that he initially agreed to drug testing as part of his case plan . In 2016,
mother told a county worker that she used methamphetamine with father . Following this,
the county asked father to demonstrate his sobriety by submitting to random drug tests; he
completed only two tests a week apart in early July 2016. Mother told the county in June
2017 that father was “driving [the child] around in a vehicle without being buckled in a car
seat and without a driver’s license,” “was using drugs ,” and hit the child. On March 24,
2018, mother called the sheriff’s office while under the influence of methamphetamines ,
stating that she used with father the previous day.
At trial, mother recalled father telling her that he would not pass one of the requested
drug tests because it would be “dirty .” He also told her that he purchased synthetic urine
to facilitate a clean test so he could visit the child. To the extent that the district court found
mother’s testimony credible, we defer to that determination. See In re Welfare of Children
of D.F., 752 N.W.2d 88, 94 (Minn. App. 2008) (“Because the district court is in a superior
position to observe th e witnesses during trial, its assessment of witness credibility is
accorded deference on appeal.”). And father’s May 2018 recorded conversation with
mother suggests continued drug use. During the conversation , father noted that mother

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was being released from jail the next day, and he told her he would “pick something up ,”
and then pick her up.
On this record, we discern no error in the district court’s assessment that father’s
“sobriety was critical to [the] [c]hild’s safety and protection.” And t he district court was
within its discretion to weigh against father his consistent avoidant behavior , including
father’s defiance of the court’s directive to remain in the courthouse to complete a drug test
following a hearing. Father’s failure to demonstra te his sobriety thwarted the county’s
ability to evaluate his need for and provide him with appropriate services. The record
amply supports the district court’s determination that father “made no effort to parent the
[c]hild,” essentially abandoning the child, and that the lack of further services being offered
to father was due to father and not the county’s “inadequacy.”
Second, the fact the child was initially removed from mother’s—not father’s—home
does not defeat termination based on failure to correct conditions. The conditions that led
to the child’s out -of-home placement were neglect and danger occasioned by a custodial
parent’s chemical use. These conditions have not change d. Father’s chemical use
continues, and he did nothing to demonstrate to the county and district court that he is a
safe, reliable custodial option. Given the child’s young age, mother’s inability to care for
him, and the duration of the out -of-home placement, father knew he needed to promptl y
engage with his case plan. His decision to rebuff the county’s repeated attempts to facilitate
his first step—demonstrating his sobriety—undermined the county’s reasonable efforts to
correct the child’s lack of a sober and safe home . See In re Welfare of Children of J.B. ,
698 N.W.2d 160, 170 (Minn. App. 2005) (rejecting parent’s request for more time to work

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on a case plan and confirming that “active efforts” were provided even though the parent
refused to accept them).1
In sum, father’s case-plan requirements were reasonable. His failure to minimally
comply with them implicated the statutory presumption that conditions had not been
corrected. The record demonstrates that father did not rebut the presumption.
II. The district court did not abuse its discretion by determining that termination
of father’s parental rights is in the child’s best interests.

The primary factors in determining a child’s best interest s are “the child’s interest
in maintaining the parent-child relationship, the parents’ interest in maintaining the parent-
child relationship, and any competing interest of the child.” In re Welfare of Children of
M.A.H., 839 N.W.2d 730, 744 (Minn. App. 2013). “Finality is one factor to be considered
in determining a child’s best inte rests.” In re Welfare of Children of B.J.B. , 747 N.W.2d
605, 610 (Minn. App. 2008). We review a district court’s best-interests determination for
abuse of discretion. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900 (Minn. App.
2011), review denied (Minn. Jan. 6, 2012).

1 Father cites In re Children of T.R. , where our supreme court distinguished between
noncompliance with a case plan for purposes of establishing a parent’s failure to correct
conditions under Minn. Stat. § 260C.301, subd. 1(b)(5) , and for establishing palpable
unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4) (2018). 750 N.W.2d 656, 663 (Minn.
2008). The supreme court ruled that only subdivision 1(b)(5) allows consideration of the
parent’s noncompliance with a case plan. Id. In a footnote, the supreme court questioned
whether a parent’s rights may be terminated for failure to correct conditions when the
parent’s substance abuse and inability to understand the child’s special needs did not
prompt the child’s removal from the home. Id. at 663 n.5. This comment does not control
our analysis. See League of Women Voters Minn . v. Ritchie , 819 N.W.2d 636, 681 -82
(Minn. 2012) (labelling as dicta and “not controlling for the present case” a gratuitous
comment unnecessary to the decision).

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The district court thoroughly evaluated the best -interests factors in its detailed
findings of fact and its memorandum. The district court found that it
is in [the child’s] best interests that he be given the opportunity
to thrive and progress in a household that is dedicated to his
well-being. There is no evidence before this court that [the
child] has developed a [f]ather -[c]hild relationship with
[father]. To the contrary, it is apparent that [the child] has not
missed having [father] in his life.

While noting that father’s parental rights “cannot be taken lightly,” the district court
determined father “has not evidenced any intention to parent.” The record amply supports
these findings. Father’s expressed interest in parenting the child is belied by his actions
and inactions. Based on our careful review of the record, we discern no abuse of discretion
in the district court’s determination that termination of father’s parental rights is in the
child’s best interests.
Affirmed.