In re the Matter of the Welfare of the Child of: N. A. L. and D. E. 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This opinion will be unpublished and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
A18-1913

In re the Matter of the Welfare of the Child of:
N. A. L. and D. E. S., Parents.

Filed May 13, 2019
Affirmed
Bjorkman, Judge

Martin County District Court
File No. 46-JV-17-99

Rachel Osband, Fiddler Osband, LLC, Edina, Minnesota (for appellant foster parents B.T.
and S.T.)

Taweh Anderson, TVA Law Office, Brooklyn Center, Minnesota (for respondent adoptive
parents D.S. and S.B.)

Adam L. Hinz, Martin County Attorney, Fairmont, Minnesota (for respondent Human
Services of Faribault and Martin Counties)

Thomas Nolan, Minneapolis, Minnesota (for guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-foster parents challenge the denial of their motion for adoptive placement
of the child in their care, arguing that the dis trict court (1) erred by denying respondent -
county’s motion to be relieved of its obligation to conduct a relative search and (2) abused

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its discretion by determining the child’s best interests favor adoption by respondent -
relatives. We affirm.
FACTS
S.L. was born on July 27, 201 7, and immediately taken into emergency protective
care after he and his mother tested positive for methamphetamine. S.L.’s mother signed
an adoption consent agreement with New Horizons Adoption Agency, Inc. and selected
appellants B.T. and S.T. as his potential adoptive parents.
Four days later, an emergency protective-care hearing was held. The district court
found S.L. in need of protection and placed him in the custody of respondent Human
Services of Faribault and Martin Counties (county). New Horizons sought to intervene
and requested that S.L. be placed with appellants. The county initially asked that S.L. be
placed with his paternal grandmother, but later withdrew its objection to New Horizons’
request. The district court ordered S.L. placed in foster care with appellants, directed the
county to conduct a relative search , and terminated the parental rights of S.L.’s parents
involuntarily.
County social worker Tiffany Gullord began the relative search in mid-September,
shortly after she was assigned to the case . Mother was known to the county because her
parental rights to N.L. and two other children had been terminated in August 2016. Gullord
soon learned S.L. had six siblings who lived with extended family. Sister N.L. was in the
care of grandmother; two older maternal half -siblings were placed with maternal aunt,
M.M.; and three paternal half -siblings resided with their respective mothers. M.M. and
grandmother each expressed interest in adopting S.L., and were li censed foster -care

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providers. M.M. ultimately acquiesced to S.L.’s placement with grandmother . Gullord
did not identify respondents D.S. and S.B., S.L.’s paternal aunt and fiancé, in the initial
relative search.
In December, appellants moved for an o rder placing S.L. with them for adoption
under what is now Minn. Stat. § 260C.607, subd. 6(b) (2018). The following month, the
county moved to deny appellants’ motion and transfer S.L.’s foster -care placement to
grandmother. The district court determined that appellants had established a prima facie
case under Minn. Stat. § 260C.607, subd. 6(c) (2018), and set the matter for an evidentiary
hearing. In interim orders, the district court established and increased visitation between
S.L. and grandmother but required S.L. to remain in foster care with appellants pending
resolution of their adoption motion.
By January 2018, Gullord was recommending that S.L. be placed with grandmother
for adoption. Because of the complexity of managing a case involving competing private
adoption and county-led relative adoption efforts, Gullord sought input from her supervisor
and staff from the Minnesota Department of Human Services. She was advised to review
the statutory best -interests factors and to “follow[] state law regarding placement with
siblings and relatives.” She submitted an affidavit to the district court on January 3 that
documents her efforts to balance S.L.’s attachment to appellants with his opportunity to
grow up with a sibling and extended family members who share his cultural heritage and
socialize together frequently.1 During this same period of time, the guardian ad litem spoke

1 S.L. is African American and Hispanic. Appellants are Caucasian.

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with an outside consultant and likewise recommended that S.L. be placed for adoption with
a relative.
The evidentiary hearing on appellants’ adoption motion began on April 5. But the
next scheduled hearing date was postponed after the district court learned of a recent
domestic incident at grandmother’s house. On May 24, the Martin County Attorney
provided the district court with additional details of the incident in which S.L.’s father and
his uncle had gotten into a n altercation at grandmother’s house . It was alleged that both
men, who are predatory offenders, were living at grandmother’s house and tha t S.L.’s
father had attac ked the uncle with brass knuckles. The parties agreed to continue the
evidentiary hearing while the county completed its investigation . In the meantime, t he
district court removed N.L. from grandmother’s home. The county initial ly placed N.L.
with M.M., but then moved her to the home of D.S. and S.B., who were in the process of
obtaining a foster-care license from Ramsey County, where they live.
The May 24 letter also questioned whether the county should be relieved of its duty
to place S.L. with relatives. Citing the child’s age and his strong attachment to appellants,
the county attorney observed that the case may have reached a “tipping point, where the
benefits of relative placement are outweighed by the costs of removal.” At the next
hearing, on May 30, the county informed the district court that it did not want to be relieved
of the duty to conduct a relative search and was exploring placement of S.L. with D.S.
Appellants and New Horizon urged the district court to relie ve the county of its duty to
search for a relative placement and to approve appellants’ adoption motion. The district
court directed the parties to submit post-hearing memoranda. In a June 18 order, the district

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court denied appellants’ request to reliev e the county of its “relative search/placement
efforts.”
The evidentiary hearing resumed in October after the county obtained information
regarding D.S. as a possible adoption placement. At the hearing, the district court received
testimony from case work ers and supervisors from Martin and Ramsey Counties, New
Horizons staff members, the guardian ad litem, N.L.’s therapist, and the two sets of parents
interested in adopting S.L. The court also received into evidence numerous reports,
including a sibling a ssessment that identified no reasons why S.L. and N.L. should be
placed separately. The parties agreed that there was a strong attachment between S.L. and
appellants. And it was undisputed that both appellants , and D.S. and S.B., would provide
care, support, and love to S.L.
Following the hearing, the district court determined that the county was “not
unreasonable in its decision not to place [S.L.] with [appellants] for adoption.” The court
also found adoption by D.S. and S.B. serves S.L.’s best interests, although it noted that the
decision was extremely difficult because of both families’ “exceptional qualifications” and
“sincere love” for S.L. At the time the order was entered, S.L. was nearly 16 months old
and had lived almost his entire life with appellants. Appellants challenge the order on
appeal.

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D E C I S I O N

I. The district court did not abuse its discretion by directing the county to
continue its relative search in May 2018.

When a child is placed in foster care, the responsible county must conduct a relative
search for both foster and permanent placement that is “comprehensive in scope.” Minn.
Stat. § 260C.221(a) (2018). The search must encompass “maternal and paternal adult
relatives of the child.” Id. (b) (2018). The relevant statutes impose notice and reporting
requirements that focus on the expeditious permanent placement of the child. Id. (b)(2)-
(5). When it becomes apparent that the child will not be reunited with his parents , the
county must notify the child’s relatives. Id. (h) (2018). In exercising its duty to
periodically review the county’s efforts, the district court may find that the county has
made reasonable efforts and relieve the county of the continuing duty to search for
relatives, or “may” order the search to continue if it is not satisfied that the agency has
exercised due diligence in conducting the search . Id. (f) (2018). We review a district
court’s decision whether to relieve a county of relative search effort s for abuse of
discretion. Minn. Stat. § 645.44, subd. 15 (2018) (stating “may” is permissive) ; see State
v. Banks, 875 N.W.2d 338, 344 (Minn. App. 2016) (noting that the use of “may” in a statute
“gives the district court discretion”), review denied (Minn. Sept. 28, 2016).
Appellants argue that the district court erred by denying the county’s request to be
relieved of its duty to search for a relative for foster -care and adoptive placement in May
2018. This argument miscasts the record. As noted above , the county’s May 24 letter
raised the question because of permanency concerns arising from the fact S.L. had been

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out of home for almost ten months. But at the next hearing, the county answered that
question; as reflected in the district court ’s May 31 order, the county “advised the Court
that they [were] not requesting to be relieved of relative placement efforts, but rather they
wish to continue to explore potential relative options.” Accordingly, there was no motion
by the county for the district court to grant or deny.
Moreover, we are not persuaded that the district court should have accepted
appellants’ separate invitation to end the search for a relative placement at that time.
Although the county’s efforts to identify an appropriate relative were initially delayed, by
January, the county had recommended placement of S.L. with grandmother and a sibling.
While that proposed placement was disrupted due to violence in grandmother’s home, the
county had already identified D.S., with whom S.L.’s si bling was also eventually placed.
On this record, we discern no abuse of discretion by the district court in continuing to hold
the county to its obligation to conduct a comprehensive relative search under Minn. Stat.
§ 260C.221(a).
II. The district c ourt acted within its discretion by determining that the county
did not act unreasonably in failing to support appellants’ adoption motion.

Generally, a county with temporary custody of a child oversees placement of the
child in a permanent home . Minn . Stat. § 260C.601 , subd. 2 (2018). The county must
make reasonable efforts to place a child in an adoptive home “with a relative or foster
parent.” Minn. Stat. § 260C.605, subd. 1(a), (b) (2018). But the adoption statute also
permits a relative or fost er parent to independently seek court approval to adopt a child

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under Minn. Stat. § 260C.607, subd. 6 (2018). This statute provides the basis fo r
appellants’ challenge to the county’s placement decision and guides our analysis on appeal.
A foster parent may move for adoptive placement of a child in her care if the foster
parent has (1) completed a home study and (2) made “a prima facie showing that the agency
has been unreasonable in failing to make the requested adoptive placement .” Minn. Stat.
§ 260C.607, subd. 6(a)(1), (b). If the prima facie showing is made, the matter proceeds to
an evidentiary hearing. Id., subd. 6(c). At the evidentiary hearing, the county must offer
evidence to support its “reason for not making the adoptive placement proposed by the
moving party,” and the foster parent must prove by a preponderance of evidence “that the
agency has been unreasonable in failing to make the adoptive placement.” Id., subd. 6(d).
At the conclusion of the hearing, “if the court finds that the [county] has been unreasonable
in failing to make the adoptive placement” and that the foster parent would provide “the
most suitable adoptive home to meet the child’s needs using the factors in section
260C.212, subdivision 2, paragraph (b),” the district court may order the county to place
the child with the foster parent for adoption. Id., subd. 6(e).
We review a n order denying a foster parent’s motion for adoptive placement for
abuse of discretion . See In re Welfare of Children of L.L.P. , 836 N.W.2d 563, 570 -71
(Minn. App. 2013) (stating that an appellate court reviews for abuse of discretion a district
court’s decision on whether a prima facie case for adoptive placement has been made under
Minn. Stat. § 260C.607, subd. 6 (b)). A district court “abuse[s] its discretion by making
findings unsupported by the evidence or by improperly applying the law .” Silbaugh v.
Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

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Appellants argue that the district court abused its discretion by finding that the best-
interests factors set out in Minn. Stat. § 260C.212, subd. 2(b) (2018)2 warrant placement
of S.L. with D.S. and S.B. While the district court did make this finding, it did so only
after determining that the county’s decision not to support appellants’ adoption of S.L. was
not unreasonable. Accordingly, we first consider whether the district court abused its
discretion in determining the reasonableness of the county’s actions . Only if we answer
this question in the affirmative, do we consider the di strict court’s best-interests
determination. See Minn. Stat. § 259.29 (2018) (requiring best -interests analysis in
adoptive placements).
We begin by observing, as the district court did, that the county was faced with the
unusual situation of two sets of parents who dearly wished to and were well -qualified to
provide a loving permanent home to S.L. Based on the entire record of the proceedings
and the evidence adduced at the evidentiary hearing, the district court concluded the
county’s decision not to support appellants’ adoption motion was reasonable. The district

2 Best-interests considerations include:
(1) the child’s current functioning and behaviors; (2) the
medical needs of the child; (3) the educational needs of the
child; (4) the developmental needs of the child ; (5) the child’s
history and past experience; (6) the child’s religious and
cultural needs; (7) the child’s connection with a community,
school, and faith community; (8) the child’s interests and
talents; (9) the child’s relationship to current caretakers,
parents, siblings, and relatives; (10) the reasonable preference
of the child . . . .
Minn. Stat. § 260C.212, subd. 2(b); see In re S.G., 828 N.W.2d 118, 125 (Minn. 2013).

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court noted that the county properly prioritized relatives and considered the statutory
preference for sibling placement, but did not base its ultimate decision solely on those
factors. Rather, the county evaluated the statutory directives and preferences in the context
of S.L.’s best interests, noting that many of the best -interests factors revealed appellants ,
and D.S. and S.B. , were “equally suited ” to be the adopti ve home. The district court
ultimately determined the county’s decision not to support appellants’ proposed adoption
placement was not “unreasonable,” but rather the product of careful consideration. For the
reasons discussed below, we discern no abuse of discretion by the district court.
First, the county met its obligation of first considering whether relatives were
available as potential adoptive placements. Minn. Stat. § 259.29, subd. 2; see S.G., 828
N.W.2d at 125 (requiring the county to “first c onsider adoption by relatives before
considering adoption by nonrelatives”). At New Horizon’s urging, the county agreed to
S.L.’s initial placement with appellants. But the county made it clear from the start that it
would search for relatives. And once Gullord was assigned to the case, she located S.L.’s
six siblings in accordance with Minn. Stat. § 260C.617(a) (2018) (establishing preference
“to place siblings together for adoption”). The county properly adapted its relative search
when it became clea r grandmother was no longer a placement option, and when N.L.’s
sister was placed with D.S. and S.B. The county’s decision to cast a broader net for
possible relative placement s in the early summer of 2018 was reasonable under the
circumstances.
Second, the record demonstrates the county’s decision not to support appellants’
adoption motion was based on its careful assessment of S.L.’s best interests. Gullord

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evaluated the various home studies, investigated an allegation of physical violence within
the extended family, and sought expert assistance to evaluate the placement issues. Gullord
learned that D.S. and S.B. both teach in St. Paul and are pursuing graduate degrees. They
parent three other children, including S.L.’s sister, N.L. The county concl uded both
families were suitable adoptive homes, but found D.S. and S.B. “more suitable” to manage
his medical needs, needs related to his past experiences, cultural needs, and relationship
with his biological family. And the county considered the potential harm to S.L. from
breaking the attachment he had with appellants and whether this harm would be
outweighed by the benefits gained from being adopted by relatives. On this record, it is
difficult to conclude anything other than that the county took its statutory obligations and
S.L.’s needs and interests very seriously.
In essence, appellants argue that the county put too much weight on famil y
preferences and cultural needs to the detriment of S.L.’s close attachment to appellants.
While the notion of attachment is not expressly addressed in the statutory best -interests
factors, it underlies the permanency requirements built into the child -protection scheme.
See Minn. Stat. § 260C.607, subds. 1 (requiring review hearing every 90 days) ,
8 (permitting modification of review hearing timelines to encourage finalization of
adoptions) (2018); see also Minn. Stat. § 260C.301, subd. 1(5)(i) (2018) (in termination -
of-parental-rights proceedings, establishing six -month presumption that county’s family
reunification efforts for children under eight have failed, and one -year presumption of
failure for older children). In In re Welfare of D.L., the supreme court recognized that harm
may occur when a child is removed from foster parent s with whom she has formed a

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healthy attachment. 486 N.W.2d 375, 376 -78 (Minn. 1992). In that case, an African
American child had been living with Caucasian foster parents for two years when the
child’s grandparents, who had custody of the child’s siblin gs, came to the county’s
attention. In affirming the district court’s decision granting the grandparents’ adoption
petition, the supreme court noted that the “key issue at trial was the severity of any trauma”
caused by “breaking the primary attachment” to the foster parents. Id. at 378. Recognizing
that “the [district] court retains broad discretion because of its opportunity to observe the
parties and hear the witnesses,” the supreme court concluded that the loss of the attachment
to the foster parents was “not good cause to defeat the family preference.” Id. at 380-81.
We are mindful of appellants’ criticism of the county’s relative search. Although it
may have appeared unnecessary to c onduct a more extensive search initially —because at
least two relatives came forward early to adopt S.L.—in hindsight, the county’s failure to
include D.S. in the initial relative search may have delayed advancement of the extended
family’s interest in adopting S.L. and made permanency for S.L. of greater concern. While
the county may not have acted as quickly or effectively as it could have in identifying
relatives, we cannot say that any deficiencies made its decision not to support appellants’
adoption motion unreasonable.
We also cannot accept appellants’ assertion that the district court’s failure to make
express findings regarding the guardian ad litem’s opinion as to S.L.’s adoptive placement
reflects an abuse of its discretion. A guardian ad litem plays an important role in the child-
protection system because she is solely appointed to protect the child’s interests. See Minn.
Stat. § 260C.163, subd. 5 (2018); Minn. R. Gen. P. 905.01(b); In re Welfare of J.R. , 655

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N.W.2d 1, 5 (Minn. 2003). But appellants cite no authority for the proposition that a district
court has a duty to make particular findings or adopt the guardian ad litem’s
recommendations. The record demonstrates that the district court considered the opinions
and testimony of all of the witnesses, including evidence provided by the guardian ad litem.
At the time of S.L.’s removal from grandmother’s home, the guardian ad litem began to
support S.L.’s adoptive placement with appellants. The guardian ad litem’s opinion
changed over time and was based on permanency and attachment concerns of which the
district court was well aware.
Ultimately, our standard of review constrains our analysis to whether the district
court erred in its legal analysis or relied on unsuppor ted factual determinations. We
conclude it did neither. The evidence may have supported findings and conclusions that
favored adoptive placement of S.L. with appellants, particularly in light of the length of
time S.L. spent in appellants’ home, and the ir demonstrated capacity to be exemplary
parents. But the record supports both the county’s determination and the district court’s
ruling to the contrary . Because the county properly applied the statutory preferences,
carefully considered the circumstances of each proposed adoptive placement, and found
placement with D.S. and S.B. would be in S.L.’s best interests, we discern no abuse of
discretion in the district court’s determination that the county did not act unreasonably in
failing to support appellants’ adoption motion.
Affirmed.