In re the Matter of the Welfare of the Children of: H.W.-S. and D.T.W., 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This opinion will be unpublished and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
A18-2031

In re the Matter of the Welfare of the Children of: H.W.-S. and D.T.W., Parents.

Filed June 24, 2019
Affirmed
Hooten, Judge

Kandiyohi County District Court
File No. 34-JV-18-146

John E. Mack, Mack & Daby, New London, Minnesota (for appellant, H.W.-S.)

John Mueller, Litchfield, Minnesota (for respondent, D.T.W.)

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent county)

Kim Junkermeier, Willmar, Minnesota (guardian ad litem)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In an appeal of the termination of her parental rights, appellant -mother challenges
the distr ict court’s credibility determinations, its authority to preclude contact with her
children, and its finding that the county made reasonabl e efforts to address her mental -
health issues. We affirm.

2
FACTS
Appellant-mother and father are the biological pa rents of two children: N.W. -S.,
born in 2010, and A.W. -S., born in 2011. In September 2017, Kandiyohi County Health
and Human Services (KCHHS) filed a children in need of protection or services (CHIPS)
petition. KCHHS became involved with the family beginning in November 2016, after
receiving reports that father had beat en and choked mother in front of their children.
Mother filed for an Order for Protection (OFP) against father. The district court granted
the OFP, which allowed father to have supervised contact with the children and also
ordered that mother was to complete a c hemical-use assessment. The OFP remained in
effect until December 12, 2017. Mother completed a chemical -use assessment and no
additional case plans were developed regarding this incident.
On March 9, 2017, KCHHS received a report alleging neglect and in adequate
supervision of the children by mother because the children were not being dropped off or
picked up from school on time. About a month later, KCHHS received a report regarding
neglect and chronic use of controlled substances after the parents had attended a hearing
for their ongoing divorce case and both had tested positive for cocaine. On April 10,
mother was charged with third-degree driving while intoxicated after she was found driving
her children with cocaine and PCP in her system. After KCHHS filed the CHIPS petition,
an emergency protective order was granted because mother allowed father to see the
children unsupervised in violation of the OFP.
While the children were placed out of the home, mother met with various mental-
health professionals. Her therapist testified that mother completed a diagnostic assessment

3
that indicated she had post -traumatic stress and cocaine dependence. Mother was
scheduled for nine therapy sessions, but cancelled twice. Mother also met with the clinical
director of Shoreview Mental Health Center. She attended two sessions, but missed several
appointments and did not complete the assessment process. In June 2018, mother entered
a treatment program at RS Eden that had programming for her mental health and chemical
dependency.
The county filed a petition to terminate the parental rights of mother and father on
July 26, 2018. The statutory grounds for termination that we re discussed at trial were
palpable unfitness and failure to correct the conditions that led t o the out -of-home
placement. At the time of the termination hearing, the children had been out of the home
for 344 days.
At the termination hearing, mother testified that she had lied about her previous
allegations of abuse against father. The allegations she recanted were that he beat her with
baseball bats, hit her while she was holding her daughter, and threatened her life.
The guardian ad litem (GAL) testified that the children disclosed t hat they would
often see their mother smoke out of a “bowl ty pe item.” The GAL also stated that while
mother did an “excellent job” when visiting her children, her drug use “scares the children.
The children have been put in situations that no child should be put in. When their mom
is using, they can’t wake her u p.” At the time of the hearing, mother was homeless and
had not finished treatment for her chemical dependency. The GAL testified that it took
mother “about six months before she went to any treatment and she went to an outpatient
treatment instead of the recommended inpatient treatment.” Mother tested positive for

4
cocaine at treatment on July 20 and September 6, 2018. The GAL ultimately testified that
it was in the children’s best interests for father’s and mother’s rights to be terminated.
Following the hearing, the district court terminated mother’s parental rights, finding
clear and convincing evidence that following the children’s placement ou t of the home,
reasonable efforts have failed to correct the conditions leading to the placement , but did
not terminate father’s parental rights. Mother appeals.
D E C I S I O N
The ultimate decision of whether to terminate a parent’s parental rights is
discretionary with the district court. In re Welfare of Child of R.D.L. , 853 N.W.2d 127,
136–37 (Minn. 2014). This court reviews a termination of parental rights “to determine
whether the district court’s findings address the statutory criteria and whethe r 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 th e weight of the evidence or not
reasonably supported by the evidence as a whole.” In re Welfare of Children of T.R., 750
N.W.2d 656, 660 –61 (Minn. 2008). “We will affirm the district court’s termination of
parental rights when a statutory ground for term ination is supported by clear and
convincing evidence, termination is in the best interests of the child, and the county has
made reasonable efforts to reunite the family.” In re Welfare of A.R.B., 906 N.W.2d 894,
897 (Minn. App. 2018).
Here, the district court terminated mother’s parental rights under Minn. Stat.
§ 260C.301, subd. 1(b)(5) (2018), finding clear and convincing evidence that following the

5
children’s placement out of the home, reasonable efforts have failed to correct the
conditions leading to the placement. The district court also determined that it was in the
best interests of the children that mother’s rights be terminated. Notably, mother does not
dispute that the children had been in out-of-home placement for the requisite period of time
required under the statute, that there was a court-approved out-of-home placement plan, or
that the conditions leading to the out -of-home placement had not been corrected. Mother
instead challenges the termination by arguing that (1) the district court erred in its
credibility determinations, which led to the wrong result , (2) the county did not make
reasonable efforts to reunite the family, and (3) the district court’s termination order went
beyond the scope of its jurisdiction.
I. Credibility of Appellant’s Testimony
Mother argues that the district court erred by finding her testimony credible and
failing to consider that her statements may have been coerced. She contends that had the
district court considered that she was coerce d, there would not be sufficient evidence to
terminate her parental rights. Mother argues for the first time on appeal that the district
court should have known that her recantation of the domestic abuse allegations was out of
fear. Mother did not argue at the termination hearing that she was being coerced, bring a
posttrial motion alleging coercion, or provide the district court or this court with a
supporting affidavit regarding her allegations. “A reviewing court must generally consider
only those issues that the record shows were presented and considered by the trial court.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). Because mother
raises this issu e for the first time on appeal , and because of the lack of factual record

6
showing that mother was coerced to provide false testimony at the TPR trial, we are
precluded from reviewing mothe r’s coercion claims on review. Id. at 582; see also State
v. Kaiser , 469 N.W.2d 316, 319 (Minn. 1991) (stating “whether or not defendant was
coerced cannot be decided without the [district] court first making factual findings relating
to the alleged coercion”).
Even when considering the merits of mother’s argument on this point, her argument
fails. The purpose of appellate courts is to correct errors, not to retry the case. Turner v.
Alpha Phi Sorority House , 276 N.W.2d 63, 68 n.2 (Minn. 1979). This court does not
reweigh evidence or determine the credibility of witnesses. Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988). The district court is in a better position to assess witness credibility,
and this court gives such determinations considerable deference. In re Welfare of L.A.F. ,
554 N.W.2d 393, 396 (Minn. 1996).
Here, the district court found that mother, in her sworn testimony, credibly declared
that her prior abuse allegations against father were false. The district court, after hearing
the testimony of mother, is in a better position to assess which version of m other’s
inconsistent abuse allegations is most credible, and we defer to the district court’ s
assessment that mother testified truthfully about her prior false abuse allegations against
father. Because we do not disturb the credibility determination of th e district court,
mother’s argument regarding the sufficiency of the evidence supporting termination has no
merit.

7
II. Reasonable Efforts
Mother also argues that the district court erred by determining that KCHHS made
reasonable efforts to address her mental-health issues.
The district court terminated mother’s parental rights under Minn. Stat. § 260C.301,
subd. 1(b)(5) because there was clear and convincing evidence that “following the
child[ren]’s placement out of the home, reasonable efforts, under the direction of the court,
have failed to correct the conditions leading to the child[ren]’s placement.” To terminate
parental rights on this basis, the district court must find that the county made reasonable
efforts to “rehabilitate the parent and re unite the family.” Minn. Stat. § 260C.301, subd.
1(b)(5)(iv).
In determining whether the county made reasonable efforts, the district court must
consider whether the services provided to the child and family were:
(1) relevant to the safety and protection of the child;
(2) adequate to meet the needs of the child and family;
(3) culturally appropriate;
(4) available and accessible;
(5) consistent 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 and “must conform to the problems presented.” In re
Welfare of Child of J.K.T., 814 N.W.2d 76, 88 (Minn. App. 2012).
In her assertion that KCHHS did not make reasonable efforts to address her mental-
health issues, mother does not claim that the services offered to her were irrelevant,
culturally inappropriate, unavailable or inaccessible, inconsistent or untimely, or

8
unrealistic. Rather, she claims that the services offered were inadequat e to correct or
ameliorate her mental illness. But the district court found, and the evidence in the record
supports, that KCHHS repeatedly attempted to address mother’s mental-health issues, but
she failed to follow through with her appointments and treatment.
Although mother ob tained a court -ordered chemical-use assessment on December
26, 2017, and the assessment recommended in-patient chemical dependency treatment, she
did not enroll into in -patient treatment at RS Eden until June 4, 2018. In addition to in -
patient chemical -dependency treatment, mother was provided other services, includi ng
chemical-use testing, mental -health th erapy, parenting classes, anger management, and
transportation assistance to visit her children.
Mother failed to cooperate w ith the social workers at KCHHS and often would
terminate the meetings, curse at the social workers, and refuse to sign the case plan and
information releases. Mother had prior mental-health assessments at Crossroad, Woodland
Centers, Shoreview Mental Health Center, and Minnesota Mental Health. A psychologist
assigned to mother’s case attempted to complete psychological testing, but was unable to
do so due to mother’s failure to attend scheduled sessions and her ultimate refusal to see
the psychologist. Mother failed to follow up with her therapist regarding an updated
diagnostic assessment and refused to allow her to review a prior diagnostic assessment.
Mother’s therapist further opined that because she had not made enough progress on her
cognitive beh avioral therapy, she was not able to start with her dialectical behavioral
therapy.

9
In sum, we conclude that there is substantial support in the record supporting the
district court’s determination that reasonable efforts were made by K CHHS to address
mother’s mental-health issues. Accordingly, we find no error regarding the district court’s
credibility determinations, termination order, or findings on reasonable efforts. Because
the statutory ground for termination is supported by clear and convincing evidence in the
record, termination is in the best interests of the children, and the county made reasonable
efforts to reunite the family, the district court did not abuse its discretion b y granting the
county’s petition and terminating mother’s parental rights to her children.
III. No-Contact Order
Finally, mother argues that the district court erred by issuing an order prohibiting
her from having contact with her children because the district court had no jurisdiction to
enter such an order in a Minn. Stat. § 260C.301 proceeding.
The district court terminated mother’s rights and stated that mother “shall have no
further right to visitation or contact with the children unless expressly authoriz ed by
Kandiyohi County Health and Human Services or ordered by the court.” Minn. Stat.
§ 260C.317, subd. 1 (2018) provides:
If, after a hearing, the court finds by clear and convincing
evidence that one or more of the conditions set out in section
260C.301 exist, it may terminate parental rights. Upon
termination of parental rights all rights, powers, privileges,
immunities, duties, and obligations, including any rights to
custody, control, visitation, or support existing between the
child and parent shall be severed and terminated and the parent
shall have no standing to appear at any further legal
proceeding.

10
Based upon the clear and unambiguous language of the statute, the district court has
the authority to terminate parental rights and a consequence of the termination is that the
parent’s right to visitation is severed. Mother’s argument lacks merit.
Mother additionally relies on Minn. Stat. § 259.58 (2018) and argues that the district
court “is required by due process to conduct an evidentiary hearing before terminating
contact between a biological parent and adoptive parents.” Minn. Stat. § 259.58 allows for
a birth relative and adoptive parents to enter into an agreement regarding communication
or contact with the minor child. See also Minn. Stat. § 260C.317, subd. 4(b) (2018) (stating
that a “parent whose rights are terminated . . . shall retain the ability to enter into a contract
or communication agreement under section 260C.619”). A parent may enter into an
agreement regarding contact with the child . The district court did not limit this ability by
restricting mother’s current visitation rights. Th e district court ordered that mother shall
have no further right to visitation or contact with the children, but also stated that visitation
may be authorized by KCHHS or ordered by the court . This allows for possible
communication agreements at a later date.
Further, mother’s argument that it is “untenable” that the district court prohibited
contact between her and the children, but did not prohibit contact between father and the
children, is without merit. The district court did not terminate father’s p arental rights ,
finding that there was no statutory basis to terminate and KCHHS had not made reasonable
efforts to reunite him and the children. As his parental rights were not terminated, he does
not suffer the consequences under Minn. Stat. § 260C.317. The district court continues to
have jurisdiction over father’ s case and could modify visitation rights at a later date. See

11
Minn. Stat. § 260C.101, subd. 1 (2018) (“The juvenile court has original and exclusive
jurisdiction in proceedings concerning any child who is alleged to be in need of protection
or services.”).
Because the district court has the authority to terminate mother’s parental rights
under Minn. Stat. § 260C.317, subd. 1, and one consequence of the termination is the
severance of mother’s visitation rights, the district court did not err by issuing an order
prohibiting her from having contact with her children.
Affirmed.