In the Matter of the Welfare of the Children of: D. K., T. R., and D. J., 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This opinion will be unpublished and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
A18-1195

In the Matter of the Welfare of the Children of:
D. K., T. R., and D. J., Parents.

Filed December 17, 2018
Affirmed
Ross, Judge

Mower County District Court
File Nos. 50-JV-17-334; 50-JV-17-333; 50-JV-17-1368

Natalie S. Martinez, Donnelly Law Office, Austin, Minnesota (for appellant)

Kristen Nelson, Mower County Attorney, Aaron Jones, Assistant County Attorney, Austin,
Minnesota (for respondent Mower County Human Services)

Thomas J. Nolan, Jr., Minneapolis, Minnesota (for guardian ad litem)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Mower County discontinued its study of Lawrence McElroy’s home for adoptive
placement of his grandchildren after the guardian ad litem concluded that McElroy was not
committed to his relationship with them. After the children’s foster parents agreed to adopt
the children, McElroy objected and requested a hearing. The district court denied McElroy
a hearing because he failed to make a prima facie showing that the county acted
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unreasonably by failing to place the children with him , a showing that requires a movant
to submit a completed home study . McElroy appeals, arguing that he was never told that
the county discontinued its home study. We affirm because McElroy identifies no
exception to the statutory prerequisite of filing an adoptive home study.
FACTS
In February 2017 Mower County placed the children of T.R., Lawrence McElroy’s
daughter, with foster parents. The district court terminated T.R.’s parental rights three
months later. McElroy, who lives in Wisconsin, sought to adopt his grandchildren through
Mower County Human Services. The county referred McElroy’s request to the Wisconsin
Department of Children and Families, which initiated a home study to review the suitability
of McElroy ’s home for adoptive placement. The agency visited McElroy’s home and
requested that he remove some doors and install a gate, which McElroy did. During the
home study, McElroy visited the children, but less frequently than the county’s suggestion
of visits at least twice monthly. In late November 2017, the county informed McElroy that
it was no longer considering his home for an adoptive placement. The county explained to
McElroy that the guardian ad litem felt that McElroy was “not committed and the children
were bonding with the foster parents.” The home study ended without completion on that
day. The children’s foster parents signed adoption-placement agreements in December
2017, and the department of human services executed the agreements in February 2018.
McElroy filed a motion the next month purporting to object to the adoptive
placement. The county responded by treating McElroy’s objection as a motion for an order
to place the children with him, because the statute provides no procedure for objecting to
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an adoptive placement. The county argued that McElroy failed to complete the home study
required by statute and failed to make a prima facie case that the county had acted
unreasonably by declining to place the children with him . It asked the district court to
dismiss his motion without a hearing. The district court also treated McElroy’s motion as
one seeking adoptive placement, and it denied the motion without an evidentiary hearing.
McElroy appeals.
D E C I S I O N
McElroy appeals from the district court’s denial of his motion objecting to the
adoptive placement of his grandchildren, raising two issues. He argues first that the district
court should have allowed him to move for adoptive placement even though he failed to
submit the adoption home study required by statute, an omission he says was caused by the
county’s failure to notify him that it had discontinued its home study. He argues second
that the district court erred when it held that he did not make a prima facie showing that
the county acted unreasonably by failing to place the children with him. Both arguments
challenge the district court’s denial of McElroy’s motion for an order of adoptive
placement without a hearing, a decision we review for an abuse of discretion. See In re
Welfare of L.L.P., 836 N.W.2d 563, 570 (Minn. App. 2013). We consider each argument.
McElroy contends that the district court should have allowed him to move for an
order for adoptive placement even though he failed to complete and include a n adoption
home study. The district court relied on the statutory language to conclude that it could not
make such an exception. We review de novo the district court’s application of a statute.
Goldman v. Greenwood, 748 N.W.2d 279, 282 (Minn. 2008).
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The district court concluded as a matter of law that a relative who is not a Minnesota
resident may move for an order for adoptive placement only if the relative completed an
approved home study and filed it with his adoption-placement motion. The district court
applied the following statute when it rejected McElroy’s motion for failing this
requirement:
[A] relative . . . may file a motion for an order for adoptive
placement of a child . . . if the relative . . . is not a resident of
Minnesota, but has an approved adoption home study by an
agency licensed or approved to complete an adoption home
study in the state of the individual’s residence and the study is
filed with the motion for adoptive placement.

Minn. Stat. § 260C.607, subd. 6(a)(2) (2018). The statute imposes two prerequisites to an
out-of-state relative’s motion for an adoptive-placement order: the relative must complete
an approved adoption home stud y, and he must include the study with his motion. The
district court construed this statute strictly by its terms. So must we. Because McElroy did
not include an approved home study with his motion, he did not meet the motion
prerequisites imposed by the statute.
McElroy argues that he should not have been precluded from filing a motion,
asserting that the county had improperly failed to give him notice that it had withdrawn its
home-study effort. McElroy’s argument has some appeal as a matter of fairness.
Conflicting with the guardian ad litem’s position that McElroy was not committed to the
adoption process, McElroy expressed considerable interest in adopting his grandchildren,
submitted to a home study , and made compliant, physical changes to his home to make it
suitable for children in response to comments made during the process. And we see nothing
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in the record before the county ceased the home-study process that would have given
McElroy any indication that the county was unsatisfied with the frequency of his visits to
Minnesota from his Milwaukee home to see the children or that the county told him that
failure to visit more frequently might result in his not being considered for adoptive
placement. Had the county informed McElroy of its position, McElroy could have either
attempted to meet the county’s concerns or obtained and submitted his own home study at
the same time the foster parents submitted theirs.
Despite the apparent equitable merit to McElroy’s argument, the argument fails.
Were the appeal to rest on notions of fairness (it does not), McElroy’s position is weakened
by the fact that the county had informed him in late November 2017 that it was no longer
considering him for adoptive placement. The record does not suggest that McElroy took
any action from that moment until March 2018, when he filed his motion challenging the
adoptive placement. McElroy does not contend that he was precluded from obtaining his
own home study from a different source in November, which was more than two months
before the department of human services executed the foster parents’ adoption-placement
agreements. While McElroy’s fairness argument has some merit, it is not overwhelming.
More important, we are not deciding the case on fairness grounds, but on legal
grounds. McElroy identifies no legal authority establishing that the statute compels, or even
allows, treating the purported unfairness of his circumstance as an exception to the
statutory prerequisites to his moving for an order of adoptive placement. We see nothing
in the statute requiring the county to complete home studies it has begun or to notify a
prospective adoptive parent that it is discontinuing a home study. This lack of legal
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authority for the proposition that the district court could except McElroy from the statutory
home-study prerequisites defeats McElroy’s position.
We are not persuaded otherwise by McElroy ’s reliance on Minnesota Statutes,
section 260C.212, subdivision 2(a)(1) (2018). That statute announces the policy of the state
to prefer placing children in the foster care of a relative. But that general policy favoring
relatives does not alter the specific statutory prerequisites to a motion for adoptive
placement. Had McElroy met those prerequisites and proved that he was an equally suitable
adoptive placement option, the district court would have had some basis for considering
the family preference in a placement contest between McElroy and the foster parents.
Because he did not meet those specific prerequisites, the general policy statute does not
entice us to reverse.
McElroy argues also that the district court abused its discretion by finding that he
failed to make a prima facie case that the county’s failure to place the children with him
was unreasonable. We generally review a district court’s determination whether a party has
made a prima facie case for an abuse of discretion. L.L.P. , 836 N.W.2d at 570. But the
same legal deficiency that defeats McElroy’s primary argument undermines this one as
well. The district court had no cause to consider whether it was reasonable to place the
children with McElroy because McElroy did not meet the filing requirements of his motion
for adoptive placement. The statute first requires an out-of-state relative to submit a home
study with his motion for adoptive placement. See Minn. Stat. § 260C.607, subd. 6(a)(2).
That presumably properly filed “ motion and supporting documents must make a prima
facie showing that the agency has been unreasonable in failing to make the requested
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adoptive placement.” Id., subd. 6(b) (2018) (emphasis added). And the district court must
dismiss the motion if the filing “and [its] supporting documents do not make a prima facie
showing” that the county acted unreasonably. Id., subd. 6(c) (201 8) (emphasis added) .
Because McElroy never properly filed a motion accompanied by a home study, his
argument about the alleged unreasonableness of denying his motion necessarily also fails.
And as a practical matter, without a home study establishing the suitableness of his home,
McElroy cannot show that it was unreasonable not to place the children in his home.
In sum, McElroy’s failure to complete and submit a home study prevents us from
reversing the district court’s decision. Because McElroy did not complete a home study,
he lacked the legal ground to submit an adoptive-placement motion. And for the same
reason, he did not make a prima facie case that the county acted unreasonably by failing to
place the children with him.
Affirmed.