In the Matter of the Welfare of the Child of : A. G. K. and J. I., 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This opinion will be unpublished and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
A18-1661

In the Matter of the Welfare of the Child of : A. G. K. and J. I., Parents.

Filed February 11, 2019
Affirmed
Florey, Judge

Otter Tail County District Court
File No. 56-JV-17-3367

Kimberly Stommes, Stommes Law Office, L.L.C., St. Cloud, Minnes ota (for appellant
A.G.K.)

Michelle M. Eldien, Otter Tail C ounty Attorney, Benjamin G.A. O lson, Rose Hanson,
Sarah Estep-Larson, Assistant County Attorneys, Fergus Falls, Minnesota (for respondent
Otter Tail County)

Mary Peterson, Alexandria, Minnesota (guardian ad litem)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant-mother challenges the district court’s order terminat ing her parental
rights. She argues that the record supports neither a basis fo r termination, nor the district
court’s findings on the child’s b est interests and the county’s reasonable reunification
efforts. Because the record supports termination based upon appellant’s palpable unfitness,

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as well as the district court’ s findings on the child’s best in terests and the county’s
reasonable reunification efforts, we affirm.
FACTS
This appeal concerns G.A.K., the three-year-old daughter of app ellant-mother
A.G.K. and presumed father, J.I., who is not a party to this ap peal.1 Appellant is also the
mother of a one-year-old boy, A.E.E., whose father is R.E. Although A.E.E. is referenced
in this opinion, he is not a subject of this termination proceeding.
Appellant has struggled with substance abuse and mental-health issues. She used
heroin during the first four or five months of her pregnancy with G.A.K. and continued to
use marijuana during the remainder of her pregnancy. G.A.K. was born in July 2015, and
the child’s meconium tested pos itive for THC. Appellant was li ving in Moorhead at the
time of the birth.
About one week after G.A.K.’s bir th, law enforcement received a report that
appellant was behaving erratically. She was found walking two miles from her apartment.
She was staggering into traffic, twitching, yelling, and exhibi ting a lack of mental focus.
Officers and paramedics suspected methamphetamine use, mental illness, or a combination
of both. Appellant denied drug use and refused to be treated by paramedics.
Officers noticed a diaper bag, and one officer recalled that appellant was previously
pregnant. When asked about her child, appellant was evasive an d said that her friend
“Sarah” was watching the child. She said that she and Sarah had an argument, she left, and

1 J.I.’s rights were terminated by default.

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although she did not make arrangements, she assumed that Sarah would stay and watch the
child. Officers took appellant to her apartment. She did not have keys to the exterior door,
so the fire department assisted in gaining entry. Appellant’s individual unit was unlocked,
and G.A.K. was found alone inside, sleeping in a car seat. G.A .K. was overdue for a
feeding, and officers estimated that the child had been alone for three to four hours. G.A.K.
was taken into emergency protective custody.
On August 4, 2015, a child-in-need-of-protection-or-services (CHIPS) petition was
filed in Clay County. On September 21, G.A.K. was adjudicated CHIPS. An out-of-home-
placement plan was adopted, and appellant was given mental-heal t h a n d c h e m i c a l -
dependency assessments. She rece ived counseling, medication ma nagement, and
outpatient chemical-dependency t reatment. Following a positive t e s t f o r
methamphetamine in October 2015, she submitted to testing showi ng several months of
continuous sobriety, and she completed outpatient treatment. G.A.K. was returned to her
custody in June 2016 after being outside the home for 328 days, and the CHIPS proceeding
was closed in November 2016.
Approximately three months later, in February 2017, appellant’s second child,
A.E.E., was born. The child’s meconium tested positive for THC and methamphetamine,
and he was held in a neonatal in tensive-care unit based upon wi thdrawal symptoms
stemming from maternal drug use. Approximately one month after A.E.E.’s birth, officers
observed appellant behaving suspic iously at a gas station; she had body tremors and
clinched teeth, indicative of stim ulant usage. G.A.K. was with appellant, in appellant’s
vehicle. Appellant failed sobrie ty testing and was arrested on suspicion of driving while

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impaired (DWI). She later admitte d to a social-services worker that she used
methamphetamine before driving.
Around this time, appellant was residing in Battle Lake with R. E., the father of
A.E.E. Otter Tail County became involved and worked with appellant on a voluntary basis;
a safety plan was created to ensure that a sober person was always present, a chemical-use
assessment was scheduled, and appellant was asked to submit to urinalysis.
O n M a y 2 4 , 2 0 1 7 , a p p e l l a n t u n d e r w e n t a c h e m i c a l - u s e a s s e s s m e n t , and formal
recommendations were completed on June 22. It was recommended that appellant undergo
outpatient treatment, and she was referred to a facility, but she failed to contact the facility.
All of appellant’s urine tests i n May and June of 2017 showed i nvalid results due to
abnormal creatinine levels.
On July 3, 2017, due to the suspicious urine tests and difficul ties in maintaining
contact with appellant, a second CHIPS proceeding was commenced, this one concerning
both G.A.K. and A.E.E ., and both children were placed with A.E. E.’s father, R.E.
However, the guardian ad litem (GAL) became concerned about a lack of bonding between
G.A.K. and R.E., and G.A.K. was moved to the home of foster parents. Appellant did not
attend the emergency-protective-care hearing held on July 6, and left the courthouse before
the admit/deny hearing held on July 13.
Toward the end of July 2017, appellant indicated that she needed inpatient chemical-
use treatment. On July 25, she told a drug counselor that she had used methamphetamine
the previous week and had injected a prescription opioid that d ay. An updated chemical-
use assessment was completed on August 8; appellant admitted that she had been abusing

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prescription opioids, marijuana, and methamphetamine. Appellan t was admitted on
August 14 to an inpatient facility in Fargo, “ShareHouse.” Upon admission, she stated that
her last use of nonprescribed prescription pills was July 31, 2 017, and her last use of
methamphetamine was August 12, 2017.
On September 27, G.A.K. was adju dicated CHIPS. That day, an ou t-of-home-
placement plan was adopted by appellant and the court. Appella nt was required to
complete an updated chemical-dep endency evaluation as well as a mental-health
assessment.
In October 2017, the co unty filed a termination-of-parental-rig hts (TPR) petition,
seeking to terminate appellant’s parental rights to G.A.K. base d upon three statutory
grounds. The county alleged th at appellant refused or neglecte d to comply with her
parental duties, that appellant is palpably unfit to parent G.A.K., and that reasonable efforts
failed to correct the conditions t hat led to G.A.K.’s out-of-ho me placement. Appellant
opposed the TPR petition and sought reunification or a voluntary transfer of parental rights
to R.E.
The month that the TPR petition was filed, appellant relapsed while at ShareHouse
by ingesting prescription medication. In November 2017, she took a breath test indicating
a blood-alcohol content of .052, but it remains unclear whether t h i s r e s u l t w a s f r o m
appellant’s use of mouthwash.
A trial was held in December 20 17. Testimony was received from a pediatrician,
R.E., the foster mother, two child-protection specialists, a chemical-use assessor, a mental-
health diagnostic assessor, appellant’s aunt, appellant, and the GAL. Appellant completed

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inpatient treatment at ShareHouse, and at the time of trial, sh e had obtained housing, was
employed at a restaurant, and was sober.
The foster mother testified about G.A.K. displaying some concer ning behaviors,
such as frequent tantrums, night terrors, sensitivity to loud n oises, fearfulness, “a lot of
hitting her head and biting herself,” and frequent shaking. Likewise, R.E. testified that he
observed G.A.K. “hitting herself.” These concerns were echoed by a diagnostic assessor,
who testified about G.A.K.’s anxiety and issues with attachment.
The GAL testified that appellant’s sobriety was her main concern, and that appellant
had six relapses in the past 12 months, though one of those rel apses was the disputed
mouthwash incident. She was concerned for G.A.K., who “has spe nt 491 days of her life
in placement,” which was “half of her life.” The GAL testified that termination of parental
rights is in G.A.K.’s best interests.
In January 2018, the district court filed an order terminating appellant and J.I.’s
parental rights to G.A.K. The court concluded that appellant w as palpably unfit to parent
G.A.K. because of her substance-abuse and mental-health issues. Appellant appealed, and
in June 2018, this court remanded the matter to the district court for necessary findings on
the county’s reasonable reunification efforts. In September 2018, the district court filed an
order with additional findings. This appeal followed.

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D E C I S I O N
I. The record supports a termination of appellant’s parental right s to G.A.K.
based upon appellant’s palpable unfitness.

We review a termination of parental rights “to 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). A factual finding is clearly erroneous “if it is either
manifestly contrary to the weight of the evidence or not reason ably supported by the
evidence as a whole.” In re Welfare of Children of T.R., 750 N.W.2d 656, 660-61 (Minn.
2008) (quotation omitted). “Termination of parental rights wil l be affirmed as long as at
least one statutory ground for termination is supported by clea r 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. 2004).
Appellant argues that there was insufficient evidence to termi nate her parental
rights. She attacks all three of the pleaded statutory grounds f o r t e r m i n a t i o n . B u t t h e
district court relied upon a single statutory basis; that appel lant was palpably unfit.
Therefore, we analyze whether that statutory basis for termination was satisfied.
A district court may terminate parental rights to a child if it finds:
[T]hat 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 chi ld or of specific conditions
directly relating to the parent and child relationship either o f
which are determined by the court to be 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.

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Minn. Stat. § 260C.301, subd. 1( b)(4) (2018). Under this statu tory basis for termination,
t h e c o u n t y w a s r e q u i r e d t o p r o v e “ a c o n s i s t e n t p a t t e r n o f s p e c ific conduct or specific
conditions existing at the time of the hearing that appear will continue for a prolonged,
indefinite period and that are permanently detrimental to the w elfare of the child.” T.R.,
750 N.W.2d at 661 (quotation omitted).
The district court found that appellant “has a long history of substance abuse and
frequent relapses,” and that appellant’s substance-abuse and me ntal-health issues persist
and create an ongoing “acute and significant risk” of relapse “ which will continue for the
reasonably foreseeable future.” The court also noted G.A.K.’s particular need for stability.
The record supports these findings.
Besides her use of heroin and marijuana during her pregnancy, appellant’s inability
to maintain sobriety has, on at least two occasions, directly impacted her ability to care for
G.A.K. She left the one-week-old child unsupervised, and she drove while impaired with
the child in the vehicle. The d istrict court’s findings suppor t the determination that
appellant’s ongoing and persistent pattern of substance abuse renders her palpably unfit.
II. The district court did not abuse its discretion by concluding t hat termination
of parental rights was in G.A.K.’s best interests.

Appellant next argues that the district court’s finding that termination is in G.A.K.’s
best interests is unsupported by the record. In a TPR proceeding, “the best interests of the
child must be the paramount consideration.” Minn. Stat. § 260C.301, subd. 7 (2018). The
district court must consider the child’s best interests and add ress those interests in its
findings of fact and conclusions of law. In re Tanghe, 672 N.W.2d 623, 626 (Minn. App.

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2003). The court must balance the child’s interests in preserv ing the parent and child
relationship, the parent’s interest in preserving the relations hip, and any competing
interests of the child. Minn. R. Juv. Prot. P. 39.05, subd. 3( b)(3); In re Welfare of R.T.B.,
492 N.W.2d 1, 4 (Minn. App. 1992). “Competing interests include such things as a stable
environment, health considerations and the child’s preferences.” R.T.B., 492 N.W.2d at 4.
We review a district court’s best-interests determination for a n abuse of discretion. In re
Welfare of Children of D.F., 752 N.W.2d 88, 95 (Minn. App. 2008).
The district court made specific best-interests findings, noting the child’s particular
need for stability and significant bonds with the foster parent s. The district court found
that the child’s need for stability outweighed appellant’s interest in maintaining the parent-
child relationship. These findings are supported by the record . Testimony indicated that
G.A.K.’s primary needs were sta bility and permanency, and the G AL testified that
termination was in the child’s best interests. The district court did not abuse its discretion
by finding that termination of parental rights was in G.A.K.’s best interests.
III. The district court’s finding tha t the county made reasonable re unification
efforts is supported by the record.

Lastly, appellant argues that “[t]he district court abused its discretion by concluding
that reasonable efforts failed to correct the conditions that led to out-of-home placement.”
While two of the statutory bases for termination alleged by the county require a failure of
reasonable efforts, the “palpably unfit” basis relied on by the district court makes no such
express requirement. See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5) (2018); T.R., 750
N.W.2d at 661. Because appellant references in her brief the q uality, quantity, and

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reasonableness of the efforts made, we construe her argument as a challenge to the district
court’s finding that the county made reasonable reunification efforts.
Under Minn. Stat. § 260C.301, subd. 8 (2018), in a TPR proceeding, a district court
must make “explicit findings regarding the nature and extent of efforts made by the social
services agency to rehabilitate the parent and reunite the family,” or the district court must
find that reasonable reunification efforts are not required. Under Minn. Stat. § 260.012(a)
(2018):
[o]nce a child alleged to be in need of protection or services is
under the court’s jurisdiction, the court shall ensure that
reasonable efforts . . . are made to prevent placement or to
eliminate the need for removal and to reunite the child with the
child’s family at the earliest possible time. . . . Reasonable
efforts to prevent placement and for rehabilitation and
reunification are always required except upon a determination
by the court that [certain conditions exist].

In determining whether the county made reasonable efforts, dist rict courts must
consider whether the services pr ovided to the child and family were: “(1) relevant to the
safety and protection of the child; (2) adequate to meet the ne eds of the child and family;
(3) culturally appropriate; (4) available and accessible; (5) c onsistent and timely; and
(6) realistic under the circumstances.” Minn. Stat. § 260.012(h) (2018). The efforts must
be aimed at correcting the conditions which led to out-of-home placement. In re Welfare
of Child of J.K.T., 814 N.W.2d 76, 88 (Minn. App. 2012).
Here, following this court’s remand, the district court made d etailed findings on the
reasonable efforts made by the county. The district court foun d that, after G.A.K. was

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removed from the home in August 2015, an out-of-home-placement plan was adopted. 2
Appellant was given a mental-health diagnostic assessment; a ch emical-dependency
evaluation; she underwent outpatient chemical-dependency treatm ent and urinalysis; she
received counseling and medicati on-management services, as well as other services; and
the county facilitated visitation. Ultimately, custody of G.A. K. was returned to appellant
after 328 days in out-of-home-placement, and the CHIPS case was closed. After A.E.E.’s
meconium tested positive for chem ical substances and appellant was arrested for DWI,
appellant was initially offered voluntary services. A chemical-dependency evaluation was
scheduled, which recommended outpa tient treatment, and appellan t failed to follow
through with that recommendation. The county also requested th at appellant submit to
urinalysis. After the CHIPS pe tition in July 2017, the county provided services pursuant
to an out-of-home-placement plan. Appellant was required to obtain an updated chemical-
dependency evaluation, which reco mmended inpatient treatment. Appellant was also
required to obtain a mental-health evaluation. Appellant engag ed in inpatient treatment,
mental-health services, and counseling. The record also indica tes that appellant had
visitation twice a week with G.A.K. These findings reveal that the county provided
reasonable services aimed at correcting appellant’s substance-a buse and mental-health
issues.

2 While we cannot locate any written case plans in the record, appellant does not challenge
the district court’s findings that appellant was provided with case plans. See In re Welfare
of Children of A.R.B., 906 N.W.2d 894, 898 (Minn. App. 2018) (holding that county wa s
required to provide court-approved, written case plan).

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Appellant asserts that she was not afforded enough time to pro v e h e r s o b r i e t y .
However, appellant fails to cons ider the permanency timelines. “A permanency or
termination of parental rights petition must be filed at or prior to the time the child has been
in foster care or in the care of a noncustodial or nonresident parent for eleven (11)
months . . . .” Minn. R. Juv. Prot. P. 33.05, subd. 2. And “the court shall commence
proceedings to determine the perm anent status of [the] child by holding the admit-deny
hearing . . . not later than 12 months after the child was plac ed” out of home, with a TPR
trial to commence within 60 days after the admit/deny hearing. Minn. R. Juv. Prot. P. 4.03,
subd. 3(c), 39.02; Minn. Stat. § 260C.503, subd. 1 (2018). The days that G .A.K. spent
outside the home in 2015 and 2016 were required to be included when determining
G.A.K.’s permanency timelines. See Minn. Stat. § 260C.503, subd. 3(b)(2).
Appellant argues that she was suffering from postpartum depression, and that issue
was not addressed by the county’s reunification efforts. Howev er, appellant was offered
mental-health services and chose to retain services through “La keland.” Moreover, the
district court did not find credible appellant’s assertion that the primary cause of her issues
was postpartum depression, and noted that, “even if postpartum depression was a
contributing factor, the record makes clear that [appellant’s] overall substance abuse and

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mental health issues are larger in scope.”3 The district court’s finding that the county made
reasonable reunification efforts is supported by the record.
Affirmed.

3 Appellant asserts that the district court’s finding, on remand, that appellant “was afforded
the opportunity to complete [outpatient] treatment . . . even before G.A.K. was placed out
of home” is not supported by th e record. The finding is suppor ted by the record, as the
chemical-dependency evaluator testified that a referral was made to the CARE facility, and
appellant failed to contact the facility. Exhibit 30 supports that testimony.