In the Matter of the Welfare of the Children of: J. M. P., N. T. B., and C. P. H., Parents.

This opinion will be unpublished and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
A18-1186

In the Matter of the Welfare of the Children of: J. M. P., N. T. B., and C. P. H., Parents.

Filed December 24, 2018
Affirmed and remanded
Larkin, Judge

Faribault County District Court
File No. 22-JV-18-7

Cathleen Gabriel, CGW Law Office, Annandale, Minnesota (for appellant J.M.P.)

Ryan A. Gustafson, Frundt , Lundquist & Gustafson, Ltd., Blue Earth, Minnesota (for
respondent N.T.B.)

Michael P. Edman, Fairmont, Minnesota (for respondent C.P.H.)

Kathryn Karjala -Curtis, Faribault County Attorney, Mindy Quittem, Assistant County
Attorney, Blue Earth, Minnesota (for respondent Human Services of Faribault and Martin
Counties)

Allison Hennager, Fairmont, Minnesota (guardian ad litem)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant-mother challenges the district court’s order transferring permanent legal
and physical custody of two of her children to their biological fa ther. We affirm , but we
remand for the district court to amend its order consistent with this opinion.
FACTS
Appellant J.M.P. is the mother of S.B. (born in 2007), E.B. (born in 2009), K.H.
(born in 2013), and L.H. (born in 2014). Respondent N.T.B. is the biological father of S.B.
and E.B. C.P.H. is the biological father of K.H. and L.H. Mother had custody of the
children prior to the events underlying this appeal.
On March 20, 2017, respondent Human Services of Faribault and Martin Counties
(the county) placed the children in protective custody based on mother’s methamphetamine
use. S.B. and E.B. were placed with N.T.B. and remained with him during the pendency
of the underlying proceedings . On March 22, 2017, the district court held an emergency
protective care hearing regarding the children . At the hearing, mother admitted that she
had used methamphetamine while caring for the children and that her methamphetamine
use created a dangerous envir onment for the children. The district court adjudicated the
children to be in need of protection or services.

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On January 12, 2018, the children remained in out -of-home placement , and the
county filed a permanency petition seeking termination of mother’s parental rights on four
statutory grounds.1 Mother denied the petition at a hearing on February 7.
On May 17 and June 1, t he district court held a trial on the termination of parental
rights ( TPR) petition. In its opening statement, the county requested that “[ mother’s]
parental rights be terminated for the two younger children and that custody of [S.B.] and
[E.B.] be involuntarily transferred to their father, [N.T.B.].” However, in its written closing
argument, the county did not argue for a transfer of legal custody . Instead , the county
argued that termination of J.M.P.’s parental rights to all four children was in the children’s
best interests.
During trial, the district court interviewed S.B. and E.B. in chambers, outside of the
presence of the attorneys and parties, regarding their experiences in mother’s care. S.B.
revealed that the children had witnessed violent conduct between mother and C.P.H., and
that mother had attempted to communicate with S.B. at times when she was not supposed
to do so. S.B. did not like mother’s attempts at unauthorized communication and wanted
to continue living with his father. E.B. told the district court that mother kept drugs in the
basement of her house and that mother had asked E.B. to lie to her therapist about mother’s
drug use. E.B. also told the district court that she considered mother’s house to be “home”
but did not want to live there unless mother was healthy.

1 The county also sought termination of C.P.H.’s parental rights to K.H. and L.H. For
reasons not relevant to this appeal, C.P. H.’s rights were not terminated, and he is not a
party to this appeal.

4
After trial, the district court made findings indicating that the relevant facts are as
follows. After the children were removed from mother’s care in March 2017, mother tested
positive for methamphetamine twice that mon th. Mother completed a chemical -
dependency assessment in April 2017, which recommended that she abstain from mood -
altering chemicals. After mother tested positive for methamphetamine in July 2017 and
again on November 5 and 16, she completed an updated chemical-dependency assessment.
Mother successfully completed the recommended chemical-dependency treatment, and at
the time of trial, she had not had any positive tests since November 2017.
In addition to chemical-dependency treatment, mother also received mental-health
therapy. She completed parenting classes, maintained employment with two different
employers, and maintained housing. The district court found that o verall, mother
“substantially completed the requirements of her case plan.”
All four of the children received therapy as a result of the child -protection
intervention. The therapy addressed domestic violence that the children had witnessed
while mother was in a relationship with C.P.H. from 2012 until August 2016. The district
court found that C.P.H. “punched holes in the walls, struck [mother], choked her, and
threatened to kill her.” K.H. and L.H. were diagnosed with post -traumatic stress disorder
“due to exposure to violence in the home.” S.B. was diagnosed with post-traumatic stress
disorder and reactive attachment disorder. E.B. was diagnosed with post -traumatic stress
disorder and depressive disorder.
From March 2017, when the children were removed from the home, through
December 2017, mother had supervised visitation w ith all four children twice a week for

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two hours. In December, L.H.’s therapist recommended that visits between mother and
L.H. be discontinued because L.H. exhibited several “behavioral stru ggles” following
visits with mother . The therapist testified th at mother was the “direct cause” of these
behaviors and was a “trauma trigger” for L.H.’s post -traumatic stress disorder. Visits
between K.H. and mother were discontinued at some point in February or March 2018. On
May 9, 2018, visits between K.H., L.H., and mother resumed.
In February 2018, S.B.’s therapist recommended that visits between S.B. and
mother be discontinued. The therapist saw improvements in S.B.’s behavior and emotional
state after a few weeks of having no contact with mother. The district court ordered visits
between S.B. and mother to resume in April 2018, but S.B. did not want to see mother.
Soon after the district court ordered visits to resume, S.B.’s “mental health became unstable
and he was hospitalized for a week.” It is not clear from the district court’s findings
whether visits between E.B. and mother were ever discontinued, but E.B. told the district
court that at the time of trial, it had been a “long time” since her last visit with mother .
Mother was not involved in the therapeutic process with any of the children.
The children’s therapists believed that mother was responsible for the children’s
behavioral issues that occurred or worsened after visits , including K.H.’s difficulty
concentrating and violent play with toys, L.H. ’s clinginess and bedwetting, S.B.’s
flashbacks and anxiety, and E.B.’s nightmares and academic struggles . The district court
was not persuaded by the therapists’ opinions, finding that “there appeared to be little effort
on the part of [t he children’s therapists and the county] in finding ways to address the
children’s trauma while facilitating reunification of the family. ” The district court also

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found that “[n]o efforts were made to include [mother] in therapy with the children or help
her in understanding any trauma the children may be suffering and what she could do.”
The court noted that in L.H.’s case, the determination that mother was the source of L.H.’s
behavioral issues was made “[w]ithout having considered or ruled out other po ssible
causes.”
The district court noted that although “the case plan was reasonable in design, it
failed to provide for any services between [mother] and the children as she progressed on
the plan.” The district court expressed concern that no efforts were made to address the
children’s behavioral issues with mother. The court noted that “her visits were terminated
without any consideration or plan for how to work on reunification efforts.” The court
found that mother had “accomplished the stated goal s in her case plan and [had] shown a
period of stability . . . , yet no effort was made to consider visits” between mother and the
children until April 2018, about one month before the TPR trial began.
The district court concluded that the county did not prove any of the alleged
statutory grounds for TPR by clear and convincing evidence, that the county did not make
reasonable efforts to reunify mother and the children, and that TPR was not in the children’s
best interests. The district court continued K.H. and L.H. under the court’s child-protection
jurisdiction, but transferred legal custody of S.B. and E.B. to their father, N.T.B.
Mother appeals, challenging that part of the district court’s order transferring legal
custody of S.B. and E.B. to N.T.B.

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D E C I S I O N
Mother contends that “[t]he evidence is insufficient to support the [district] court’s
order transferring permanent custody [of S.B. and E.B.] to [N.T.B.].” We review the
district court’s permanency decision for abuse of discretion. In re Welfare of Child of
D.L.D., 865 N.W.2d 315, 321 (Minn. App. 2015), review denied (Minn. July 20, 2015).
When a child has been placed in foster care or in the care of a noncustodial or
nonresident parent, “the court shall commence proceedings to determine the permanent
status of [the] child by holding the admit -deny hearing . . . not later than 12 months after
the child was placed” out of home. Minn. Stat. § 260C.503, subd. 1 (2018 ). At the
conclusion of the permanency proceedings, the district court must either “order the child
returned to the care of the parent or guardian from whom the child was removed” or “order
a permanency disposition . . . or termination of parental rights . . . if a permanency
disposition order or termination of parental rights is in the child’s best interests .” Minn.
Stat. § 260C.509 (2018). In any termination proceeding, the district court shall find “that
reasonable efforts to finalize the permanency plan to reunify the child and the parent were
made,” unless the district court makes a finding “that reasonable efforts for reunification
are not required as provided under section 260.012.” Minn. Stat. § 260C.301, subd. 8
(2018).
In making a permanency disposition order or terminating parental rights, the district
court “must be governed by the best interests of the child, including a review of the
relationship between the child and relatives and the child and other important persons with
whom the child has resided or had significant contact.” Minn. Stat. § 260C.511(b) (2018).

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The “best interests of the child” means “all relevant factors to be considered and
evaluated.” Minn. Stat. § 260C.511(a) (2018).
“If the court finds that termination of parental rights and guardianship to the
commissioner is not in the child’s best interests, the court may transfer permanent legal
and physical custody of the child to a relative when that order is in th e child’s best
interests.” Minn. Stat. § 260C.513(a) (2018). “[A]n order for transfer of permanent legal
and physical custody to a relative shall only be made after the court has reviewed the
suitability of the prospective legal and physical custodian,” and “in transferring permanent
legal and physical custody to a relative, the [district] court shall follow the standards
applicable under [chapter 260C] and chapter 260, and the procedures in the Minnesota
Rules of Juvenile Protection Procedure.” Minn. Stat. § 260C.515, subd. 4(1)-(2) (2018).
Except for an order terminating parental rights, an order permanently placing a child
out of the home of the parent or guardian must include the following findings:
(1) how the child’s best interests are served by the order;
(2) the nature and extent of the responsible social
services agency’s reasonable efforts or, in the case of an Indian
child, active efforts to reunify the child with the parent or
guardian where reasonable efforts are required;
(3) the parent’s o r parents’ efforts and ability to use
services to correct the conditions which led to the out-of-home
placement; and
(4) that the conditions which led to the out -of-home
placement have not been corrected so that the child can safely
return home.

Minn. Stat. § 260C.517(a) (2018); see also Minn. R. Juv. Prot. P. 42.05, subd. 1 (requiring
the same findings).

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Mother bases her challenge to the sufficiency of the evidence on the four factors set
forth in Minn. Stat. § 260C.517(a). We address the district court’s consideration of each
factor in turn.
Children’s Best Interests
Mother argues that the “district court failed to make adequate best-interest findings
regarding transferring the custody of [ her] older children, S.B. and E.B., to their father.”
She further argues that “[t]he court did not address how the best interests were better served
by transferring permanent legal and physical custody to [S.B. and E.B.’s] father. In fact,
the record is void of any factors pertaining to the children’s father.”
The record does not support mother’s argument. T he district court made several
findings regarding N.T.B.’s suitability as a custodian. The district court found that S.B.
and E.B. “both have a healthy relationship with [N.T.B.]” and that S.B. “wanted to continue
living with his father.” The district court also noted that both S.B. and E.B. “have resided
with their father since their removal from [ mother’s] home,” and “have spoken positively
about residing with him.” S.B. “explicitly stat[ed] that h e would prefer to live with
[N.T.B.] permanently.” Moreover, the district court noted that the county, the guardian ad
litem, and the children’s therapist all “opined that [N.T.B.] provides a stable and safe
home” for S.B. and E.B. The court concluded th at because N.T.B. “represents a fit and
willing relative to serve as [S.B.] and [E.B.’s] custodian . . . it would be in their best interest
for him to have permanent legal and physical custody” of S.B. and E.B.
In sum, the district court adequately explained why a transfer of legal custody to
N.T.B. was in the children’s best interests.

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Reasonable Efforts
Once a child alleged to be in need of protection or
services is under the court’s jurisdiction, the court shall ensure
that reasonable efforts, including culturally appropriate
services, by the social services agency are made to prevent
placement or to eliminate the need for removal and to r eunite
the child with the child’ s family at the earliest possible time,
and the court must ensure that the r esponsible social services
agency makes reasonable efforts to finalize an alternative
permanent plan for the child . . . .

Minn. Stat. § 260.012(a) (2018).
Mother argues that the “very fact that social services failed to make reasonable
efforts towards reunification is the very reason [she] should be allowed more time to work
on an amended case plan before a court permanently transfers custody.” She further argues
that the “district court prematurely transferred custody in this case; despite recognizing that
[she] was not given the resources to properly work towards reunification. ” But mother
does not cite, and we are not aware of, authority establishing that the responsible social
services agency’s failure to provide reasonable efforts , by itself, precludes a transfer of
legal custody to a relative as a permanent-placement option.
We note that, in a proceeding to terminate parental rights, the district court shall find
“that reasonable efforts to finalize the permanency plan to reunify the child and the parent
were made.” Minn. Stat. § 260C.301, subd. 8(1) (emphasis added). However, the district
court is not req uired to make a similar finding when transferring legal custody. Instead,
the district court need only make a finding regarding “the nature a nd extent of the
responsible social services agency’s reasonable efforts or, in the case of an Indian child,
active efforts to reunify the child with the parent or guardian where reasonable efforts are

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required.” Minn. Stat. § 260C.517(a)(2). Thus, unlike an order terminating parental rights,
an order transferring legal custody does not require a finding that reasonable efforts were
in fact made, and a lack of reasonable efforts is not dispositive . Instead, it is one of four
factors that the district cou rt must consider in making a legal -custody-transfer
determination.
In sum, we are not persuaded that the district court’s finding that the county failed
to provide reasonable efforts, by itself, precludes the transfer of legal custody in this case.
Although the finding is relevant, it is not dispositive.2
Mother’s Efforts to Use Services and Whether the Conditions that Led to Out -of-
Home Placement Were Corrected

As mother notes, the district court’s findings regarding these factors generally favor
mother. Mother argues that the conditions that led to the out -of-home placement are
“almost entirely corrected.” She also argue s that the children were placed out of home

2 The county “respectfully disagrees with the Court’s determination that [it] did not provide
reasonable services,” but it “supports the ulti mate outcome of permanency for the two
children who are the subject of this appeal, S.B. and E.B., as it is in their best interest to
live with their father.” The county states that “[w]hile [it] recognizes and embraces its
obligation to reunify families, child protection workers are not necessarily trained mental
health professionals. It is reasonable for [ them] to rely on the professional opinions of
those who are.” Although the county disagrees with the district court’s reasonable -efforts
determination, it did not file a notice of related appeal seeking review of that determination.
“After one party timely files a notice of appeal, any other party may seek review of a
judgment or order in the same action by serving and filing a notice of related appea l.”
Minn. R. Civ. App. P. 103.02, subd. 2. Respondents who do not file a notice of related
appeal are “not entitled to affirmative relief from this court.” In re Guardianship of Pates,
823 N.W.2d 881, 884-85 (Minn. App. 2012). Because the county did no t file a notice of
related appeal, we do not review the district court’s reasonable-efforts determination.

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because of her methamphetamine use and that she “has demonstrated her sobriety and can
now properly care for her children.”
There is no presumption that completion of a case plan equates with correction of
the conditions that led to an out-of-home placement. In re Welfare of Child of J.K.T., 814
N.W.2d 76, 89 (Minn. App. 2012). “T he 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 .” Id. Moreover, a district court “may find that a
child cannot safely return home even though the factual bases for the conditions preventing
the child’s return home are not identical to the factual bases for the conditions that led to
the child’s out -of-home placement.” D.L.D., 865 N.W .2d at 316. Those are the
circumstances here: mother has substantially completed the requirements of her case plan
and corrected the conditions that led to out -of-home-placement of her children —the
dangerous environment created by her methamphetamine use —but the children cannot
safely return to mother’s care because of their mental-health issues and emotional needs.
In sum, mother’s completion of her case -plan services and her correction of the
original conditions that led to the out -of-home placement do not pre clude the district
court’s permanency disposition in this case.
Conclusion
In transferring permanent legal custody of S.B. and E.B. to N.T.B., the district court
reasoned that “the children are not ready to return home due to such an extended period of
having no contact with their mother and no family therapy” and that “[mother], at present
and in the near future, will be unable to properly care for the children.” The district court

13
therefore concluded that it was necessary to make a determination regarding the permanent
placement of S.B. and E.B. Mother argues that “[i]t is premature to permanently transfer
physical and legal custody of her two older children while still allowing her a chance with
her younger children” and that “[t] he court should have allowed for continued [child-
protection] services [for] all four children.” For the reasons that follow, we are not
persuaded.
The district court’s decision to continue child-protection jurisdiction over K.H. and
L.H. was based on its determination that “no permanent placement options exist” for those
children. Thus, t he district court ordered K.H. and L.H. to remain in out -of-home
placement indefinitely and ordered the county to “renew efforts to identify permanent
placement options in the event th at custody of [K.H. ] and [L.H.] cannot be returned to
[mother].” Essentially, the district court ordered continued child -protection jurisdiction
over K.H. and L.H. because it had no other permanency option for those children . See
Minn. Stat. § 260C.312(a) (2018) (stating that “[i] f, after a hearing, the court does not
terminate parental rights but determines that the child is in need of protection or services,
. . . the court may find the child is in need of protection or services”). But the district court
had a viable permanency option for S.B. and E.B.: transfer of legal custody to their
biological father, N.T.B. Because the circumstances of the two sibling groups were
different, the district court did not abuse its discretion by proceeding to a perman ency
disposition for only one of the sibling groups.
Moreover, t he district court appropriately considered the relevant circumstances
when determining whether to order a permanent placement for S.B. and E.B., including

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that they had been placed out of mother’s care for approximately 15 months, that they were
with N.T.B. the entire time, that they have a healthy relationship with N.T.B. , and that
mother was not able to meet their mental-health and emotional needs. The supreme court
has recognized “the importance of emotional and psychological stability to a child’s sense
of security, happiness and adaptation, as well as . . . the fundamental significance of
permanency to a child’s development.” In re Welfare of J.J.B. , 390 N.W.2d 274, 279
(Minn. 1986).
It may seem unfair that mother lost custody o f S.B. and E.B. to their father even
though she completed her case-plan services and the county did not make reasonable efforts
to address the visitation and contact issues . But the record establishes that S.B. and E.B.
needed permanency. And although the record does not support termination of mother’s
parental rights, it supports the less severe permanency option of a transfer of legal custody
of S.B. and E.B. to N.T.B. 3 The district court did not abuse its discretion in ordering that
option.
However, we have concerns regarding the district court’s order. A permanency
order transferring legal custody “shall state whether the transfer was voluntary or
involuntary” and “shall state whether a child support order exists or if the issue is reserved
for future determination.” Minn. R. Juv. Prot. P. 42.07, subd. 6. ; see Minn. Stat.
§ 260C.515, subd. 4(2) (“in transferring permanent legal and physical custody to a relative,

3 Although the district court’s denial of the county’s request for termination of mother’s
parental rights is not at issue in this appeal, we nonethe less observe that the district court
correctly determined that the record does not support termination.

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the [d istrict] court shall follow . . . the procedures in the Minnesota Rules of Juvenile
Protection Procedure”). The record does not indicate that the district court addressed these
issues.
We also note that the district court may retain jurisdiction after a transfer of legal
custody.
When the court orders transfer of permanent legal and
physical custody to a relative under [rule 42.07], the court may
retain jurisdiction over the responsible social services agency,
the parents or guardian of the child, the chi ld, and the
permanent legal and physical custodian. The court may
conduct reviews at such frequency as the court determines will
serve the child’s best interests for the purpose of ensuring:
(a) appropriate services are delivered to the child and
the permanent legal and physical custodian; or
(b) conditions ordered by the court relating to the care
and custody of the child are met.

Minn. R. Juv. Prot. P. 42.07 , subd. 7. If jurisdiction continues, the court order “shall
address parental and sibling visitation and ongoing services” for the child while the district
court has jurisdiction. Id., subd. 6.
We recognize that “[i]f the court transfers permanent legal and physi cal custody to
a relative, [district] court jurisdiction is terminated unless specifically retained by the
court.” Id., subd. 2. But in this case, because the district court retained child -protection
jurisdiction over K.H. and L.H. , c larification regardi ng whether the district court’s
jurisdiction over S.B. and E.B. is also to continue, and if so whether visitation and services
will be ordered for those children, would be useful.
In sum, although the district court did not abuse its discretion by transferring legal
custody of S.B. and E.B. to N.T.B. , the district court’s order does not fully comply with

16
the requirements of Minn. R. Juv. Prot. P. 42.07, subd. 6, and could address other issues
stemming from the custody transfer. We therefore affirm the district court’s order, but we
remand for the district court to amend its order consistent with this opinion.
Affirmed and remanded.