In re the Matter of the Welfare of the Child of: S. D. T. and R. 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This opinion will be unpublished and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
A18-1781

In re the Matter of the Welfare of the Child of:
S. D. T. and R. S., Parents.

Filed May 13, 2019
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-JV-17-4447

Mary F. Moriarty, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for appellant father R.S.)

Michael O. Freeman, Hennepin County Attorney, Lisa M. Godon, Assistant County
Attorney, Minneapolis, Minnesota (for respondent county)

Bonnie Scurry, Office of the Guardian ad Litem, Minneapolis, Minnesota (guardian ad
litem)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Hennepin County Human Services opened a case file for an infant born to a mother
whose custody of or parental rights to nine other children were previously transferred or
terminated. The county located the child over two years later, taking the child into its
custody and seeking to terminate the rights of both mother and father. Father appeals,
arguing, among other things, that the district court lacked clear and convincing evidence to
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terminate his parental rights. Because the record does not contain clear and convincing
evidence supporting termination, we reverse and remand.
FACTS
R.T.S. was born in February 2015 to mother S.D.T. and father R.S. R.T.S. is father
R.S.’s first child, and the record does not indicate that R.S. has any prior history in child
protection cases.
Mother S.D.T., on the other hand, had nine children before birthing R.T.S.
S.D.T.’s history with child protective services is extensive. In successive child-protection
proceedings, S.D.T. lost her parental rights to or custody of all nine of her children. It was
mother S.D.T.’s adjudicated unfitness that prompted Hennepin County Human Services to
open a file for R.T.S. and to obtain a district court order authorizing the county to take
immediate protective custody of the child. The county failed to take immediate custody,
however, and it did not locate R.T.S. for two and a half years.
The county finally located the child in September 2017 when Bloomington police
encountered the family at a Walgreens, panhandling. The county took custody of R.T.S.
The county petitioned to terminate both S.D.T.’s and R.S.’s parental rights. It
created a voluntary case plan for R.S. and learned from testing that his I.Q. score is
substantially below average, “in the extremely low range of functioning.” Both parents
participated in supervised visits with the child, but the county suspended the visits after
S.D.T. acted disruptively and threatened to harm a supervising worker.
In April 2018 the county drafted a new case plan for R.S. and the district
court formalized the plan as an order the following month. R.S.’s two-day
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termination-of-parental-rights trial was held in August 2018. The district court terminated
his parental rights. R.S. moved for a new trial. The district court denied his motion and
instead amended the termination order to add more findings.
R.S. appeals.
D E C I S I O N
R.S. raises two arguments on appeal. He argues first that the district court erred by
finding that the county made reasonable accommodations for his disability as required by
the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Minnesota
Human Rights Act. He argues second that clear and convincing evidence did not support
termination of his parental rights as required by statute. We need not address his
disability-related arguments because the lack of clear and convincing evidence as to each
of the statutory bases for termination requires reversal and remand.
The district court can exercise the extraordinary power to terminate parental rights
only if clear and convincing evidence supports at least one of the statutory termination
grounds. Minn. Stat. § 260C.301, subd. 1(b)(1)–(9) (2018); see also In re Welfare of
Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). The district court terminated
R.S.’s parental rights on three of those grounds, concluding that he is palpably unfit to
parent, Minn. Stat. § 260C.301, subd. 1(b)(4) , that he failed to abide by the duties of the
parent-child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2), and that
R.T.S. was neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8).
We must review whether any of these statutory bases is supported by clear and convincing
evidence. On review of the termination of parental rights, we must determine whether the
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district court’s findings satisfied the statutory elements and whether they are supported by
substantial evidence. S.E.P., 744 N.W.2d at 385. In doing so, although we give significant
deference to the district court’s ultimate decision to terminate parental rights, we must first
“closely inquire into the sufficiency of the evidence to determine whether it was clear and
convincing.” Id. We have carefully examined the evidence and reasons for each statutory
basis for termination here.
Palpable Unfitness
A parent is palpably unfit if specific conditions exist that “directly relat[e] to the
parent and child relationship” and 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).
The district court gave three reasons supporting its conclusion that R.S. is palpably unfit to
parent. It reasoned that R.S. has parenting deficiencies, did not understand or appreciate
R.T.S.’s needs, and is unable to protect R.T.S. from S.D.T. The district court found that
R.S. “lacks the higher- level understanding of his child’s needs, particularly with regard
to . . . particular medical and special needs, including educational, speech, and therapeutic
needs.” The evidence and reasoning do not support the conclusion.
Regarding medical needs, the district court elaborated, saying that R.S. “does not
understand his child’s need for regular, local, medical care.” The district court found, and
the record supports, that R.S. did not have a primary -care physician for R.T.S. in the area
before the county took custody of him. But the district court identifies no instance in which
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R.T.S. went without necessary medical services or faced any harm from the lack of them,
regular or otherwise, while under R.S.’s care.
Regarding educational needs, the district court found that R.S. “does not understand
the benefit of preschool,” and this finding arises from R.S.’s testimony that he believes
R.T.S. should begin school at age five. Preschool attendance is not compulsory in
Minnesota. See Minn. Stat. § 120A.22, subd. 5(a) (2018) (requiring school attendance from
age 7 to 17). The county removed R.T.S. from R.S.’s care when R.T.S. was only two years
old, and, according to the National Center for Education Studies, preschool is not the choice
of most parents of even three- year olds. See Nat’l Ctr. for Educ. Stat., Preschool and
Kindergarten Enrollment, (last updated Feb. 2019),
https://nces.ed.gov/programs/coe/indicator_cfa.asp. That R.S. “does not understand the
benefit of preschool” is not a fact that supports termination.
The district court found that R.S. cannot properly respond to a real emergency
because he “does not know how to respond to even minor emergencies—such as how to
remove his child’s finger from Play -Dough.” Whether to rem ove a two- year-old child’s
finger from Play-Dough is a parenting choice that does not demonstrate whether the parent
will act appropriately in a real emergency. And given the county’s decision to suspend
R.S.’s supervised parenting opportunities as an apparent penalty for the misconduct of
S.D.T., not of R.S., the county’s emphasis on this single supervised incident seems
overstated. In any event, the cited incident is not clear and convincing evidence that the
parent will fail to protect R.T.S. in an emergency.
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Regarding the child’s special needs, the district court found that R.S . “has never
attended his child’s therapeutic appointments.” This may show a lack of insight, but it adds
little to establish palpable unfitness to parent. The district court did not identify how R.S.’s
lack of insight due to his own low functional intelligence renders him unfit to parent. The
district court did say that R.T.S.’s special needs include a “developmental delay, speech
difficulties, and possible autism.” But it made no findings on what specific services R.T.S.
needs, nor did it identify any evidence that R.S. is unwilling or unable to ensure that his
child gets those services.
The district court predicted that, “[a]s his child grows older, the complexities of
parenting will only increase” and that “father’s inability to adapt will be a particular
problem considering the child’s special needs.” The district court here seems to reason
that, because R.S. has a significantly lower than average intelligence, he will not be
able to parent R.T.S. through challenges that R.T.S. will face. But conditions that have not
yet occurred do not reasonably support a palpable unfitness determination. In re Welfare
of Children of B.M., 845 N.W.2d 558, 564 (Minn. App. 2014); see also In re Children of
T.R., 750 N.W.2d 656, 661 (Minn. 2008) (holding that specific conditions at the time of
the hearing are the focus of palpable unfitness inquiry). And R.S.’s mental disability, like
a parent’s mental illness, is not in itself a basis for termination. See In re Welfare of Kidd,
261 N.W.2d 833, 835 (Minn. 1978) (observing need for connection between parent’s
mental illness and parenting conduct to support termination).
A central focus of the termination order was S.D.T. The district court put the
greatest emphasis on R.S.’s failure to “protect the child from . . . mother,” highlighting that
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she “has repeatedly been deemed a palpably unfit parent.” It concluded that this failure
“poses an ongoing safety risk to the child, and is a condition that is unlikely to change in
the reasonably foreseeable future.” We recognize that a parent’s failure to keep a child
from a dangerous adult is evidence that may support a finding of palpable unfitness to
parent. See In re Children of T.A.A., 702 N.W.2d 703, 708–09 (Minn. 2005) (noting that a
parent’s failure to protect a child from abusive adults provided clear and convincing
evidence that the parent was palpably unfit). But although t he district court outlined
abundant evidence proving that R.S. continued his relationship with S.D.T., it never
explained why allowing S.D.T. near the child poses a safety risk. The county points to
nothing in the record allowing us to hold that it presented clear and convincing evidence
that S.D.T. poses a safety risk from which R.S. must, but will not, protect the child.
Adding to these findings, the district court says that R.S. “has apparent memory
issues” and “has diff iculty dealing with changes in routine.” These too do not show
palpable unfitness. We hold that, taken together, the evidence relied on by the district court
does not clearly and convincingly support its finding that R.S. is palpably unfit to parent.
Compliance with Parental Duties
The district court also held that clear and convincing evidence supported termination
of R.S.’s parental rights because he failed to comply with parental duties. The district court
may terminate parental rights if the parent “substantially, continuously, or repeatedly
refuse[s] or neglect[s] to comply with the duties imposed upon that parent by the parent
and child relationship” and reasonable efforts by the agency have not corrected the
conditions leading to the initial removal of the child. Minn. Stat. § 260C.301, subd. 1(b)(2).
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The district court reasoned that R.S.’s failure to meet R.T.S.’s daily medical, educational,
and mental-health needs demonstrates his failure to comply with his parental duties. It s
specific findings and analysis do not support the noncompliance-with-duties conclusion.
The district court rejected R.S.’s observation that he and S.D.T. met the child’s
needs for the first two and a half years of the child’s life, reasoning that “the parents were
not in contact with [child services], and it is not clear that they were the only ones caring
for the child.” The district court therefore drew an unsupported negative inference; it
inferred from the lack of evidence that R.S. and S.D.T. alone cared for the child that
someone else must have helped them. First, the court’s assumption that other caregivers
were involved is not clear and convincing evidence that they were. And second, that other
caregivers were involved in helping provide care for R.T.S. while R.S. was obligated to
ensure proper care tends to show that he has ensured the child’s proper care, not that he has
not.
The district court acknowledged the child’s “relative [good] health at the time of the
parents’ arrest” but similarly pointed out that both S.D.T. and R.S. together, not R.S. alone,
may have been providing for the child’s care. This reasoning is conflicting; on one hand,
the district court consistently rejected R.S.’s claim that he is a fit parent by assuming that
S.D.T. is so dangerous that allowing her presence proves R.S.’s inability to protect the
child. But on the other, the district court rejected R.S.’s claim that he has provided good
care for the child by assuming that it was S.D.T. who provided that care. In any event, that
the child’s needs were being met by R.S. with or without S.D.T.’s help is not evidence that
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R.S. substantially, continuously, or repeatedly refused or neglected to comply with his
parental duties.
The district court opined that the social worker and parenting educators believed
that R.S. “ lacks the ability to respond to higher-level needs of the child, including basic
safety requirements like responding to emergencies and bringing the child to the hospital
as necessary.” It added that R.S. did not seek “regular, consistent, medical care for the child
prior to the child’s placement in foster care.” The district court does not identify, and the
county does not cite, any circumstance when R.S. failed to take the child to the hospital
when he should have. Nor did it identify any point when the child needed, but was not
provided, proper medical care. A hypothetical failure to respond to a theoretical future
emergency or medical need cannot constitute clear and convincing evidence that a parent
has previously substantially, continuously, or repeatedly refused or neglected to comply
with his parental duties.
The district court criticized R.S.’s disbelief that “the child needs special education
or therapeutic services” after he was informed that an expert assessed the child as needing
those services. But the county fails to identify evidence of any neglect or refusal by R.S.,
let alone his substantial, continual, or repeated neglect or refusal, to provide R.T.S. any of
the services the district court implicitly found to be essential.
Neglected and in Foster Care
The termination order also cannot rest on the reasoning behind the conclusion that
R.T.S. was neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(8). A child is
neglected and in foster care if the child has been placed in foster care by court order, the
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parent’s circumstances are such that the child cannot be returned, and the parent has not
made reasonable efforts to adjust his circumstances, condition, or conduct, despite the
availability of rehabilitative services. Minn. Stat. § 260C.007, subd. 24 (2018); see also
Minn. Stat. § 260C.163, subd. 9 (2018) (listing seven factors to consider when determining
whether a child is neglected and in foster care). The district court did not find that R.S.
failed to make reasonable efforts in his case plan. In fact, it expressly found that “father has
made efforts to comply with his case plan.” The record supports the finding. R.S. attended
parenting classes, exhibited rudimentary parenting skills, demonstrated some
improvement, worked with a psychotherapist, visited R.T.S. regularly , and maintained
communication with the county. The district court did not focus on R.S.’s efforts, however,
but on his lack of progress, finding, “Unfortunately, Respondent father has made little
progress on his case plans . . . .” The court’s cited support for this conclusion is, again, the
undefined danger posed by R.S.’s decision to maintain his relationship with S.D.T.: “Even
if . . . father had made remarkable progress, he has shown that he intends to remain in a
relationship with . . . mother, whose parental rights have been terminated. His need to
separate from her is essential for the protection of the child . . . .” And it also focused on
R.S.’s low intelligence, observing that “he is not able to absorb and remember the
educational tools he has been provided.”
The district court’s findings and analysis do not support its conclusion that clear and
convincing evidence establishes R.T.S. is neglected in foster care.

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Summary
We are mindful of the difficulty facing the district court in addressing a termination
petition involving an indigent parent with a substantially low intelligence level. And our
opinion does not suggest that the district court erred in finding that “[t]he child cannot be
placed with Respondent father” because it is not clear, in light of the circumstances at the
time of the trial, that “placement of the child with him would be safe.” Nor do we hold that
the order protecting the child should be vacated. We conclude only that, despite the district
court’s reasonable concerns, the county’s evidence supporting the elements of termination
was not clear and convincing. We remand the case to the district court for any further
proceedings to address custody and the child’s need for protection or services in light of
current circumstances and R.S.’s continued parental rights.
Reversed and remanded.