In re the Matter of the Welfare of the Child of: J. A. V. and N. F. S., 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This opinion will be unpublished and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
A18-1621

In re the Matter of the Welfare of the Child of:
J. A. V. and N. F. S., Parents.

Filed March 11, 2019
Affirmed
Halbrooks, Judge

Renville County District Court
File No. 65-JV-18-43

J.A.V., Renville, Minnesota (pro se respondent)

John E. Mack, Mack & Daby, P.A., New London, Minnesota (for appellant N.F.S.)

David J. Torgelson, Renville County Attorney, Olivia, Minnesota (for respondent Renville
County Human Services)

Jan Tonn, Wood Lake, Minnesota (guardian ad litem)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Smith, John, Judge.

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

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant-father challenges the district court’s termination of his parental rights and
the district court’s denial of his petition to transfer permanent legal and physical custody
to a relative. We affirm.
FACTS
This appeal arises from two child-in-need-of-protection-or-services (CHIPS)
proceedings occurring between September 2015 and September 2018. The child, K.S., was
initially removed from the custody of his mother, J.A.V. , in September 2015 (CHIPS I)
due to her methamphetamine use. K.S. was removed again in December 2016 (CHIPS II)
and in March 2018. J.A.V. voluntarily terminated her parental rights at the beginning of
trial in 2018 and is not part of this appeal.
In both CHIPS proceeding s, appellant N.F.S., the non -custodial father of K.S.,
intervened as a party. The county made recommendations for N.F.S. in CHIPS I, including
a mental -health assessment and chemical-dependency treatment and that he maintain
sobriety and submit to random urinaly sis (UA). But N.F.S. was either noncompliant or
sporadic in his compliance with the county’s recommendation throughout CHIPS I.
In the course of CHIPS II, the district court ordered N.F.S. to comply with the
existing case plan from CHIPS I and to follow all recommendations of the county. N.F.S.
obtained a parenting -capacity assessment in 2017. But he did not complete the other
recommendations, which included parent education, a mental -health assessment, a
chemical-health assessment, domestic-violence education, and anger management. N.F.S.

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also violated an order for protection (OFP) by contacting J.A.V. throughout the CHIPS II
proceeding.
N.F.S. remained noncompliant with the county’s recommendations as of October
2017. He also engaged in a pattern of hostile, harassing, and threatening conduct toward
county workers and the guardian ad litem (GAL) in voicemail, phone calls, and text
messages. This conduct resulted in a court order prohibiting N.F.S. from contacting county
service providers other than in writing.
N.F.S. completed a psychological assessment in December 2017. He was diagnosed
with generalized anxiety disorder and narcissistic personality disorder. N.F.S.’s diagnosis
of narcissistic personality disorder raised additional concerns a bout his ability to care for
K.S. The county recommended that N.F.S. complete therapy.
In February 2018, the district court ordered N.F.S. to participate in supervised visits
with K.S. at Harmony Visitation Center. N.F.S. did not arrange the visits as ordered.
Instead, he had unsupervised contact with K.S. through J.A.V.
The county filed a permanency petition in March 2018, requesting that N.F.S.’s
parental rights be terminated; alleging that (1) N.F.S. substantially, continuously, or
repeatedly ref used or neglected to comply with the duties imposed b y the parent -child
relationship; (2) N.F.S. was palpably unfit to be a party t o the parent -child relationship;
(3) K.S. was neglected and in foster care; and (4) reasonable efforts had failed to correct
the conditions leading to ou t-of-home placement. N.F.S. petitioned the district court to
transfer permanent legal custody to his sister, K.G.

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The district court conducted a four-day bench trial. Witnesses included the county
social worker, the parental-capacity evaluator, the psychologist, a second social worker,
the GAL, N.F.S. , and K.G. Following trial , the district court ordered termination of
N.F.S.’s parental rights, concluding that the county proved by clear and convincing
evidence under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8) (2018), that (1) N.F.S.
has substantially, continuously or repeatedly, refused or neglected to comply with the
duties imposed upon the parent-child relationship; (2) N.F.S. is palpably unfit to be a part
of the parent-child relationship; (3) reasonable efforts have failed to correct the conditions
leading to out -of-home placement; and (4) K.S. is neglected and in foster care, and that
termination is in the best interests of K.S. The district court denied N.F.S.’ s petition to
transfer legal custody of K.S. to his sister, K.G. This appeal follows.
D E C I S I O N
I.
In reviewing a district court’s decisi on to terminate parental rights, we “determine
whether the 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). We review the
district court’s ultimate decision to terminate parental rights for an abuse of discretion. In
re Welfare of Child of R.D.L., 853 N.W.2d 127, 136-37 (Minn. 2014).
We will affirm a termination of parental rights “as long as at least one statutory
ground for termination is supported by clear and convincing evidence and termination is in
the child’s best interests.” In re Welfare of Children of R.W. , 678 N.W.2d 49, 55 (Minn.

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2004). We therefore address the district court’s determination of N.F.S.’s palpable
unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4).
A parent is deemed to be palpably unfit when the district court determines that “a
consistent pattern of specific conduct before the child or of specific conditions directly
relating to the parent and child relationship” are of “a duration or nature that renders the
parent 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).
N.F.S. challenges the district court’s determination that there is clear and convincing
evidence that he is palpably unfit, argu ing that his drug use alone does not render him
palpably unfit to parent. But the district court’s determination on this statutory ground was
based on more than N.F.S.’s demonstrated lack of sobriety. The GAL’s reports indicate
that K.S. regressed in his behavior and stability after visits with N.F.S. According to the
GAL, N.F.S.’s inconsistency in visiting K.S. was very difficult for the child. K.S.’s foster
parents stopped telling K.S. about upcoming visits because N.F.S. would often not show
up, caus ing K.S. to be angry and upset. The parenting -capacity assessment noted that
N.F.S. does not have a healthy attachment with K.S. and that the bond between them is not
strong. The parental-capacity evaluator testified that N.F.S. cannot “provide for his own
basic needs let alone take care of a child.” She noted in her report that N.F.S.’s scores on
the psychological tests are an indication that N.F.S. “is capable of committing acts of
physical, emotional, and verbal abuse. [They] also indicate[] he harbors poorly repressed
resentment and anger.”

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N.F.S. exhibited difficulty managing his anger throughout the proceedings when he
repeatedly engaged in hostile, harassing, and threatening contact with county workers.
This conduct resulted in a court order prohibiting him from contacting county service
providers except in writing. The district court also noted that the police reports and the
testimony of the GAL, social workers, and K.G. discuss N.F.S.’s ang er problems and his
inability to control his temper. Based on the witness testimony and record evidence, the
district court concluded that N.F.S. is palpably unfit to be a party to the parent -child
relationship. We conclude that the district court’ s findings are supported by substantial
evidence and are not clearly erroneous.
II.
Even when there is a statutory basis for terminating a parent ’s rights, a child’s best
interests are the paramount consideration. Minn. Stat. § 260C.301, subd. 7 (2018); In re
Children of Vasquez, 658 N.W.2d 249, 254 (Minn. App. 2003). The best-interests analysis
considers “(i) the child ’s interests in preserving the parent -child relationship; (ii) the
parent’s interests in preserving the parent -child relationship; and (iii) an y competing
interests of the child.” Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3). “Competing interests
include such things as a stable environment, health considerations and the child ’s
preferences.” In re Welfare of R.T.B. , 492 N.W.2d 1, 4 (Minn. App. 1992). The district
court’s order terminating parental rights must explain its “rationale for concluding why the
termination is in the best interests of the child [].” In re Tanghe , 672 N.W.2d 623, 625
(Minn. App. 2003). “[D]etermination of a child’s bes t interests ‘is generally not
susceptible to an appellate court’s global review of a record,’ and . . . ‘an appellate court’s

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combing through the record to determine best interests is inappropriate because it involves
credibility determinations.’” In re Welfare of Child of D.L.D., 771 N.W.2d 538, 546 (Minn.
App. 2009) (quoting Tanghe, 672 N.W.2d at 625 ). We apply an abuse -of-discretion
standard to a district court’s determination concerning the children’s best interests. In re
Welfare of Children o f J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011), review denied
(Minn. Jan. 6, 2012).
The district court made detail ed factual findings on the best -interests factors set
forth in Minn. Stat. § 260C.212, subd. 2 (b)(1)-(10) (2018), and determined that termination
of N.F.S.’s parental rights is in the best interests of K.S. The district court found that K.S.
“has minimal interests in maintaining a parent child relationship with [N.F.S.]” and that
N.F.S. “is not capable of recognizing the depth of [K.S.]’s needs for security and stability.”
The district court found that while N.F.S. “claims he wants to maintain the parent child
relationship . . . he has had four years to demonstrate that desire and ability” and that his
actions “speak louder than [N.F.S.]’s verbal assertions at trial. ” The district court also
stated that “[N.F.S.] has only a superficial and fanciful interest in maintaining the parent
child relationship. He has no real appreciation for what it means to be a parent.” The
district court noted that K.S. is “not bonded” with N.F.S. and that spending time with N.F.S.
is “a source of distress and discomfort for K.S.” The district court also found that N.F.S.
and K.S. have “competing interests” and that it is in K.S.’s bes t interest s to have a
permanent and stable environment.
We defer to the district court’s determination regarding N.F.S.’s credibility. The
district court’s findings are well supported by clear and convincing evidence, including the

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testimony of the GAL, the parenting-capacity evaluator, and the psychologist and are not
clearly erroneous. We conclude that the district court did not abuse its discretion in
determining that termination of N.F.S.’s parental rights is in the best interests of K.S.
III.
N.F.S. contends that the district court erred by denying his petition to transfer
custody of K.S. to his sister, K.G. We review a district court’s decision regarding whether
to transfer legal custody for an abuse of discretion . In re Welfare of Children of A.I., 779
N.W.2d 886, 895 (Minn. App. 2010), review dismissed (Minn. Apr. 20, 2010).
The district court determined that “there is not clear and convincing evidence” that
his petition to transfer custody to K.G. should be granted. N.F.S. contends that the district
court utilized an improper burden of proof and therefore erred. We disagree. The standard
of proof for permanent transfer of custody upon petition to the district court is identical to
the standard for termination of parental rights. “Consistent with the level of proof generally
required in child protection proceedings,” a permanent -placement determination must be
supported by “clear and convincing evidence.” In re Welfare of A.R.G. -B., 551 N.W.2d
256, 261 (Minn. App. 1996). A district court “may order permanent legal and physical
custody to a fit and willing relative in the best interests of the child.” Minn. Stat.
§ 260C.515, subd. 4 (2018). Another party to the proceeding “may file a petition to transfer
permanent legal and physical custody to a relative.” Id., subd. 4(6). A district court may
only order transfer of custody to a relative after it has “reviewed the suitability of the
prospective legal and physical custodian.” Id., subd. 4(1).

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The district court made thorough best -interests findings, including credibility
determinations to which we defer. D.L.D., 771 N.W.2d at 545. The district court noted
that K.G. “admitted that [N.F.S.] currently lives with her” and that when she became aware
that N.F.S. was having unsupervised visits with K.S. and J.A.V. in violation of the district
court’s order, she did not inform the county social worker because the social worker
“already knew about it.” The district court found that K.G. “is enmeshed in her brother’s
problems and that [N.F.S.] is her priority, not [K. S.]” and that K.G. “admitted during her
testimony to allowing her loyalty to her brother [to] overcome any protection toward
[K.S.]. She knew that [K.S.] was unsafe, but decided that [J.A.V. and N.F.S.] should have
a chance to parent.” The district court found that it is in K.S.’s best interests “to have a
permanent and stable environment” and that K.G. “has not demonstrated previously that
she will provide a safe environment for [K.S.].” We are satisfied that t he district court’s
denial of N.F.S.’s petition to transfer custody to K.G. is supported by clear and convincing
evidence. The district court did not abuse its discretion in determining that it is not in
K.S.’s best interests to transfer permanent legal and physical custody to K.G.
Finally, N.F.S. argues that the county did not satisfy its obligation to conduct a
relative search pursuant to Minn. Stat. § 260C.221 (2018) and that the district court erred
in its determination that the search was satisfactory. But N.F.S. did not raise an objection
to the county’s relative search in district court , nor did he bring a motion for a new trial.
We do not generally consider an argument raised for the first time on appeal. Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate courts generally will not

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consider matters not argued to and considered by the distr ict court). Accordingly, we
decline to address it.
Affirmed.