In the Matter of the Welfare of the Child of: M. D. L. and G. M., 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This opinion will be unpublished and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
A19-0034

In the Matter of the Welfare of the Child of:
M. D. L. and G. M., Parents.

Filed June 3, 2019
Affirmed
Smith, Tracy M., Judge

Becker County District Court
File No. 03-JV-18-2036

Timothy H. Dodd, Detroit Lakes, Minnesota (for appellant-father G.M.)

Stuart J. Kitzmann, Kitzmann Law Firm, Detroit Lakes, Minnesota; and

Elizabeth A. Walker, E. Walker Law, PLLC, Detroit Lakes, Minnes ota (for respondent-
mother M.D.L.)

Brian W. McDonald, Becker County Attorney, Kristal E. Kadrie, A ssistant County
Attorney, Detroit Lakes, Minnesota (for respondent Becker County Human Services)

Erin Voge, Audubon, Minnesota (guardian ad litem)

Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant-father G.M. appeals the termination of his parental rights to his child. The
district court terminated G.M .’s parental rights based on its f indings that G.M. had been
convicted of a crime requiring predatory-offender registration, that termination is in the

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child’s best interests, and that the responsible social services agency had made reasonable
efforts to reunite G.M. and the child. G.M. argues that the district court abused its discretion
by determining that termination is in the child’s best interest s without giving G.M. more
time to complete a case plan. We affirm.
FACTS
In 2004, G.M. was convicted of gross sexual imposition in North Dakota. Later, he
moved to Minnesota. His North Da kota offense falls within the s cope of Minn. Stat.
§ 243.166, subd. 1b(b) (2018), wh ich requires persons entering Minnesota to register as
predatory offenders on the basis of certain out-of-state crimes.
In January 2016, G.M. and M.D.L. had a child, J.M. In October 2017, an
investigator with Becker County Human Services (BCHS) received reports that M.D.L.’s
children may have been experien cing abuse and neglect in M.D.L. ’s home. While the
subsequent investigation did not substantiate the reported conc erns, it did reveal G.M.’s
prior North Dakota offense. BCHS filed a child-in-need-of-protection-or-services (CHIPS)
petition in November 2017; that petition was granted, giving BCHS protective supervision
of J.M. In mid-December 2017, BCHS filed its first petition to terminate G.M.’s parental
rights.1

1 A responsible social services a gency must seek termination of parental rights when a
parent “has committed an offense that requires registration as a predatory offender under
section 243.166, subdivision 1b, paragraph (a) or (b),” Minn. S tat. § 260C.503, subd.
2(a)(6) (2018), unless the agency files with the district court either a petition to transfer
legal and physical custody of the child to a relative or a CHIP S petition including a case
plan and documentation of a compelling reason why termination would not be in the best
interests of the child, Minn. Stat. § 260C.503, subd. 2(d) (2018).

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In March 2018, following a trial, the district court denied the petition for
termination. It found that G.M. had committed a crime listed in Minn. Stat. § 260.012(g)
(2018). See Minn. Stat. § 260C.301, subd. 1 (b)(9) (2018) (establishing that a court may
terminate parental rights if it finds “that the parent has been convicted of a crime listed in
section 260.012, paragraph (g), clauses (1) to (5)”). But the c ourt determined that it was
not in J.M.’s best interests to terminate G.M.’s parental right s because G.M. had changed
since committing the crime that p rovided the statutory basis fo r termination. The district
court noted the length of time since the conviction, credited G .M.’s testimony that he had
started thinking before making decisions, and found that G.M. no longer drank to excess,
that he had been engaged with the services he was offered, that he had been regularly
involved with parenting J.M., that he was in a committed relationship with a woman (L.C.),
and that he was steadily employed. The court concluded that the re were “compelling
reasons . . . to explore alternative options; namely, a more th orough case plan offered to
[G.M.].” The district court ordered that G.M. remain subject to the related CHIPS
adjudication.
Following the March order, BCHS and G.M. agreed to a new case p lan. The plan
had three main requirements: fir st, that G.M. complete a capaci ty-to-parent evaluation;
second, that G.M. complete a ps ychosexual evaluation; and, thir d, that G.M. attend
supervised visits with J.M. In June, a new social worker took over the case at BCHS.
Because G.M. had not yet scheduled the two required evaluations , G.M.’s case plan was
modified to add a requirement th at G.M. complete the capacity-t o-parent evaluation and
the psychosexual evaluation within 90 days.

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A capacity-to-parent evaluation requires four to six appointments to complete. The
capacity-to-parent evaluation ap pointments were free of cost to G.M. By contrast, a
psychosexual evaluation requires a single appointment but G.M. was required to pay for it.
A psychosexual evaluation genera lly costs between $600 and $800 , though BCHS is
sometimes able to provide financial assistance. G.M. declined financial assistance when it
was offered in June, saying that he could afford the evaluation . G.M.’s supervised visits
with J.M. were arranged through P ositive Connections, an organi zation that would
schedule and supervise G.M.’s parenting time. Visitation times were scheduled by Positive
Connections in consultation with M.D.L. and G.M.
In August, G.M. moved to Grand Forks. He had not yet undergone his capacity-to-
parent evaluation or his psychosexual evaluation, and he asked BCHS if he could complete
the two evaluations there. But BC HS only had a contract to prov ide capacity-to-parent
evaluations with a local organization that did not provide serv ices in Grand Forks; as a
result, to be evaluated in Grand Forks, G.M. would have had to pay for the evaluation
himself. Also, the specific organization G.M. asked about in Grand Forks did not have the
necessary staff to do either evaluation. BCHS instead offered to help with transportation to
appointments in Minnesota.
I n t h e m o n t h s a f t e r h e a g r e e d t o t h e m o d i f i e d c a s e p l a n , G . M . scheduled three
appointments for his capacity-to- parent evaluation—in July, Aug ust, and October—but
missed all three. G.M. eventually did schedule and attend two c apacity-to-parent
appointments, both in November 2018, including one on the day before trial on the second,
and current, petition for termination of his parental rights.

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G.M. also scheduled several appoi ntments for psychosexual evalu ations—two in
July and one at the end of October—but failed to attend them. G.M. did not provide notice
or an explanation for missing the July appointments. Before the October appointment,
G.M. contacted his social worker, saying that he had made it from Grand Forks to Detroit
Lakes on his way to an appointment in Brainerd. He asked for a gas voucher so that he
could make it to the appointment. BCHS provided the gas voucher, but G.M. did not attend
the appointment. In November, G.M. requested financial assistance from BCHS to pay for
the psychosexual evaluation, but BCHS denied the request, reaso ning that it was not a
worthwhile expense given G.M.’s failure to follow through on other parts of the case plan
and previous refusal to accept ai d. G.M. had not attended an ap pointment for a
psychosexual evaluation at the time of the trial on the current petition.
G.M. similarly struggled to comply with the supervised visitati on called for in his
case plan. From the initiation of the case plan in April until early September, 13 visits were
scheduled at Positive Connections. G.M. attended four of them; M.D.L. cancelled one of
them; and G.M. cancelled the others. G.M. did not attend any su pervised visits with J.M.
after July, and he was removed from the visitation calendar in September after cancelling
four visits in a row.
On September 28, 2018, BCHS brought a second petition for termination of G.M.’s
parental rights. The sole statut ory basis alleged in the petiti on was that G.M. had been
convicted of a crime listed in Minn. Stat. § 260.012(g)(1)-(5). The case was tried on
November 27, 2018. At trial, the district court took judicial n otice of its order in the first
termination petition.

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The evidence in the second action focused primarily on G.M.’s failure to complete
the requirements of the case plan and the reasons for that fail ure. BCHS also introduced
new evidence suggesting that G.M .’s conduct did not align with the narrative of stability
that he had presented at the first hearing. This evidence inclu ded several police reports
describing investigations of se xual assaults alleged to have oc curred between July 2017
and January 2018. In one incident, G.M. grabbed a woman’s breast; G.M. admitted to doing
so but claimed that he did not have a sexual motive. Another in volved a series of alleged
sexual assaults involving a woman who was under the influence o f methamphetamine.
BCHS also elicited testimony from G.M. indicating that his relationship with L.C. was not
actually stable at the time of the previous trial and had since ended. Specifically, he testified
that he had impregnated an 18-year-old woman outside of his rel ationship with L.C. in
December 2017, before the first trial. G.M. also testified that he had been in two arguments
with L.C. that had led to the police being called. L.C.’s son was present during at least one
of those arguments.
The district court found that there was clear and convincing evidence that G.M. had
been convicted of a crime on which termination of parental rights could be based, see Minn.
Stat. § 260C.301, subd. 1(b)(9), and that BCHS had made reasonable efforts to reunite J.M.
with G.M. Most importantly for this appeal, it further found t hat there was clear and
convincing evidence that termination is in J.M.’s best interest s. The district court based
this finding, in large part, on G.M.’s failure to meet the requ irements of his case plan.
Specifically, it found that J.M.’s interest in preserving the p arent-child relationship had
dissipated because of G.M.’s infrequent visits, that G.M.’s interest in the relationship was

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similarly low because of his lack of diligence in pursuing the case plan, and that G.M.’s
noncompliance with the case plan and “ongoing concerning behavi ors” meant that
termination would prom ote J.M.’s stability and safety. The dist rict court therefore
terminated G.M.’s parental rights.
G.M. appeals, arguing that the district court should not have found that termination
is in J.M.’s best interests and seeking an order instructing the district court to allow G.M.
more time to complete his case plan.
D E C I S I O N
A natural parent is presumptively a “fit and suitable person to be entrusted with the
care of his or her child,” and “[o]rdinarily, it is in the best interest of a child to be in the
custody of his or her natural parents.” In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn.
1995). As a result, parental rights may be terminated “only for grave and weighty reasons.”
In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).
To terminate parental rights, a district court must determine t hat at least one
statutory basis for termination exists. Minn. Stat. § 260C.301, subd. 1 (2018); In re Welfare
of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985). “Even if a statutory ground for termination
exists, the district court must still find that termination of parental rights . . . is in the best
interests of the child.” In re Welfare of Child of A.M.C., 920 N.W.2d 648, 657 (Minn. App.
2018) (alteration in original) (quotation omitted); see also Minn. Stat. § 260C.301, subd. 7
(2018) (“In any proceeding under this section, the best interes ts of the child must be the
paramount consideration . . . .”). “In analyzing a child’s best interests, the district court
must balance three factors: ‘(1) the child’s interest in preser ving the parent-child

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relationship; (2) the parent’s in terest in preserving the paren t-child relationship; and (3)
any competing interest of the child.’” A.M.C., 920 N.W.2d at 657 (quoting In re Welfare
of R.T.B. , 492 N.W.2d 1, 4 (Minn. App. 199 2)). Both the sta tutory-basis and the best-
interests determinations are dis cretionary with the district co urt and must be based on
underlying findings of fact that are supported by clear and con vincing evidence. In re
Welfare of Children of J.R.B., 805 N.W.2d 895, 901, 906 (Minn. App. 2011), review denied
(Minn. Jan. 6, 2012).
A district court is also required to find, based on clear and c onvincing evidence,
either that reasonable efforts to reunify the parent and child were made or that the social
services agency is exempted from making efforts toward reunific ation. Minn. Stat.
§§ 260.012; 260C.301, subd. 8 (2 018). The ultimate decision to terminate a person’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).
We review the district court’s determinations for an abuse of discretion. J.R.B., 805
N.W.2d at 901, 905. When reviewing the district court’s underlying factual findings, “this
court must determine whether the district court’s findings address the statutory criteria, are
supported by substantial eviden ce, and are not clearly erroneou s.” In re Children of
Vasquez, 658 N.W.2d 249, 251-52 (Minn. App. 2003). “A finding is clearly erroneous if it
is either manifestly contrary to the 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) (quotation omitted). We “closely inquire into the sufficiency of the evidence

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to determine whether it was clear and convincing.” See In re Welfare of Children of S.E.P.,
744 N.W.2d 381, 385 (Minn. 2008).
G.M. argues that the district court abused its discretion in co ncluding that
termination is in J.M.’s best in terests. He makes three specifi c arguments, which we
address in turn.
Findings from the First Petition
G.M. first argues that the district court should have given more weight to its findings
in the initial petition, when it determined that G.M. and J.M. had formed a bond, that J.M.
had “experienced stability and safe ty with [G.M.],” and that G. M. had demonstrated his
interest in preserving the parent-child relationship. G.M. also asserts that there have been
no allegations that he directly harmed or neglected J.M.
G.M’s latter point is correct—BCHS did not allege, and the dist rict court did not
find, abuse or neglect of J.M. But allegations of harm or negl ect are not necessary to a
district court’s finding that termination would be in a child’s best interests. See, e.g., In re
Welfare of S.N. , 423 N.W.2d 83, 91 (Minn. App. 1988) (affirming the district c ourt’s
finding that termination was in certain children’s best interes ts based on the children’s
success in foster placement, need for permanency, and lack of desire to contact the parent).
Thus, the fact that G.M. has not directly harmed or neglected J.M. does not undermine the
district court’s determination.
As to G.M.’s argument regarding the findings on the initial petition, the district court
did address its prior findings. It specifically found that G.M. ’s infrequent visitation with
J.M. had dissipated the bond between them, that G.M.’s commitment to being a parent had

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not been reflected in his conduct because he failed to pursue v isitation or follow through
on his case plan, and that G.M.’s “frequent cancellations of visitation, lack of engagement
on his Case Plan, and ongoing concerning behaviors” meant that J.M.’s safety and stability
would be best preserved by termination. Thus, the district court considered its findings in
the previous petition and identifi ed record evidence tending to s h o w t h a t t h e f a c t s
underlying those earlier finding s no longer existed. District c ourts must evaluate the
conditions as they exist at the time of the trial. In re Welfare of Chosa , 290 N.W.2d 766,
769 (Minn. 1980) (“[E]vidence relating to termination must addr ess conditions that exist
at the time of the hearing . . . .”). The district court here p roperly focused on the facts as
they existed in November 2018, r ather than the facts as they ex isted at the time of the
hearing on the first petition.
Case Plan
G.M. next argues that the district court abused its discretion by relying on his failure
to complete the case plan as evidence that termination is in J.M.’s best interests. He claims
that the evidence shows that he complied with the case-plan requirements to the best of his
ability and blames his noncomplia nce on barriers to compliance and inflexibility on the
part of the organizations involved. “Determination of a child’s best interests is ‘generally
not susceptible to an appellate court’s global review of a record,’ because of the credibility
determinations involved, and because of the multiple factors that must be weighed.” In re
Welfare of Children of M.A.H. , 839 N.W.2d 730, 744 (Mi nn. App. 2013) (quoting In re
Tanghe, 672 N.W.2d 623, 625 (Minn. A pp. 2003)). Nonetheless, G.M. ask s us to review

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the record as a whole and determine that the district court abu sed its discretion by
determining that termination is in J.M.’s best interests.
G.M. begins by arguing that his failure to attend his scheduled supervised visits does
not reflect a lack of desire to be a parent to J.M. but rather was a result of two factors: his
inability to make travel arrangements except on weekends, and t he uncooperativeness of
M.D.L. and BCHS. G.M. asserts that, had visitation been scheduled on weekends, he would
have attended. But G.M. made this argument to the district court, which rejected it, finding
that G.M. never told his BCHS social workers that his schedule was not being
accommodated and had not sought to restore visitation after Pos itive Connections
terminated his visitation schedule.2 Those findings are supported by the record. The district
court did not abuse its discre tion by relying on them to conclu de that G.M. had failed to
demonstrate a commitment to par enting, thus minimizing his inte rest in maintaining the
relationship. See In re Welfare of A.J.C., 556 N.W.2d 616, 620 (Minn. App. 1996) (stating
that a parent’s interest may not weigh against termination when the parent engaged in
visitation only “sporadically”), review denied (Minn. Mar. 18, 1997). Nor did it abuse its
discretion by concluding that G.M .’s repeated failure to visit J.M. dissipated the bond
between them, reducing J.M.’s interest in preserving the parent -child relationship. See
A.M.C., 920 N.W.2d at 657-58 (holding that a parent’s inconsistent visits, which rendered

2 Additionally, though not noted by the district court, one of t he visitation dates was
scheduled for August 26, 2018—a Sunday. See Hesse v. Hesse, 778 N.W.2d 98, 103 (Minn.
App. 2009) (“A court may take judicial notice of the course of the calendar.”); In re Block,
727 N.W.2d 166, 176 (Minn. App. 2007) (“An appellate court may take judicial notice of
a fact for the first time on ap peal.” (quotation omitted)). G.M. cancelled that appointment
as well, even though it was on a weekend; his brief does not address this fact.

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the parent “unavailable” to the child, supported the district court’s finding that termination
was in the child’s best interests).
G.M. also attempts to excuse his lack of progress on the two ev aluations required
by the case plan. He points out that the social worker on his c ase changed and that a new
guardian ad litem was assigned to J.M., but it is not apparent why these facts would have
impacted his ability to complete either evaluation and G.M. doe s not explain. G.M. gives
no additional reason why he faile d to make any progress on the capacity-to-parent
evaluation until November 6, near ly two months after his deadli ne to complete that
evaluation. Instead, he argues that, because he belatedly completed part of the evaluation,
the district court should not have treated his failure to timely complete the whole evaluation
as evidence of his lack of commitment to the parent-child relationship and lack of capacity
to provide stability. But, even th ough G.M. eventu ally made som e progress, the district
court considered the fact that he did not attend any appointmen ts until after BCHS had
petitioned to terminate his parental rights. The district court did not abuse its discretion in
concluding that taking more than seven months to schedule and a ttend two appointments
shows a lack of interest in maintaining the parent-child relationship.
G.M.’s explanation for why he failed to complete his psychosexual evaluation also
does not show that the district court’s reliance on that failur e was an abuse of discretion.
G.M. notes that he was required to pay for the psychosexual eva luation and argues that,
because BCHS initially offered financial assistance but later d ecided not to provide such
assistance, his failure to complete the psychosexual evaluation should not be held against
him. Just as with G.M.’s other arguments, however, the district court addressed the facts

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on which he relies. The district court considered that G.M. wou ld have been required to
pay for the psychosexual evaluation but also noted that he did not ask for financial
assistance until November 2018, af ter the deadline to complete the evaluation and after
BCHS had already petitioned for te rmination. G.M.’s explanation f o r w h y h e d e c l i n e d
financial assistance but then later requested it also does not strongly support his argument.
He says that when he declined assistance, he was in the highest -paying job of his career,
one that he left in August 2018. But this does not explain why he failed to complete the
psychosexual evaluation before August or why he did not ask for assistance in September
and October. G.M. offers no reason for the two missed appointments in July, to which his
argument about his loss of income would not apply. The district court did not abuse its
discretion when it relied on G.M . ’ s f a i l u r e t o c o m p l e t e t h e p s ychosexual evaluation as
evidence that termination is in J.M.’s best interests.
In sum, the district court’s reliance on G.M.’s failure to comp lete his case plan as
evidence that G.M. had not made reunification with J.M. a priority, that the bond between
him and the child had diminished, and that terminating G.M.’s p arental rights would
promote J.M.’s stability and safety was not an abuse of discretion.
Recent Sexual Conduct
Finally, G.M. argues that his recent sexual conduct does not support the conclusion
that termination is in J.M.’s best interests because he has not had any recent convictions
and because the recent investigations and charge against him do not involve minors. G.M.
appears to implicitly argue that, because the recent allegations against him do not involve
minors, they do not tend to show that termination is in J.M.’s best interests because they

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do not indicate that he is likel y to sexually abuse the child. But his earlier conviction
nevertheless remains a statutory basis for terminating parental rights, and G.M.’s recent
conduct—touching a woman’s breast without her consent and engag ing in several sexual
encounters with a woman who was u nder the influence of methamph etamine—tends to
show that he has not addressed his behavior. In In re Welfare of Child of K.L.W., this court
affirmed a district court’s conclusion that termination was in a child’s best interests based,
in part, on the parent’s conviction for sexual contact with a person under the age of 13 that
had occurred between 11 and 7 years before termination and the parent’s failure to make
adequate progress in sex-offender treatment, without discussing whether those facts
showed a likelihood of abuse against the child. 924 N.W.2d 649, 657 (Minn. App. 2019),
review denied (Minn. Mar. 8, 2019). Likewise, here, the district court was w ithin its
discretion to rely on similar facts when concluding that terminating G.M.’s parental rights
would promote J.M.’s safety and stability.
None of G.M.’s arguments persuades us that the district court abused its discretion
by concluding that termination of his parental rights is in J.M.’s best interests. G.M. is not
entitled to additional time to complete a case plan. We affirm the termination of G.M.’s
parental rights.
Affirmed.