In re the Matter of the Welfare of the Child of: A. M. H. a/k/a A. M. K. and D. H., 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This opinion will be unpublished and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
A19-0215

In re the Matter of the Welfare of the Child of:
A. M. H. a/k/a A. M. K. and D. H., Parents.

Filed July 22, 2019
Affirmed
Hooten, Judge

Otter Tail County District Court
File No. 56-JV-18-2567

Kimberly Stommes, St. Cloud, Minnesota (for appellant D.H.)

Michelle M. Eldien, Otter Tail County Attorney, Benjamin G. A. Olson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent county)

Matthew D. Jorud, Jorud Law Office, Fergus Falls, Minnesota (for respondent A.M.H.)

Deanne Raitz, Fergus Falls, Minnesota (Guardian ad Litem)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant-father challenges the termination of his parental rights. We affirm.
FACTS
The child subject to the se proceedings, C.S., was born to mother A.M.K. and
appellant-father D.H. The Otter Tail County Department of Human Services (the county)

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became involved with the child during mother’s pregnancy after receiving a child welfare
report in December 2015 alleging that mother was addicted to drugs and homeless. As a
result of the report and the subsequent child welfare assessment, mother was civilly
committed as a chemically dependent person in late March 2016. The child was born in
May 2016, and in late June, mother reached out to the county in order to obtain services on
a voluntary basis. She received those services until October 2016 when she was ar rested.
The child was eventually placed in emergency protective non -relative foster care, and the
county filed a petition alleging that the child was in need of protection or services (CHIPS).
The child was adjudicated to be in need of protection or services. Mother was incarcerated
until mid-June 2017, but the county agreed that she had complied with her portion of the
placement plan to the best of her ability while incarcerated. She was then allowed to have
a trial home visit with the child, and custody of the child was soon returned to mother. That
CHIPS case was terminated in late February 2018.
In early July 2018 , the county received a maltreatment report alleging that mother
was using drugs while caring for the child and had been caught stealing. In the course of
the subsequent invest igation, the county learned that the child had a significant speech
delay. Additionally, mother tested positive for drugs and admitted to being addicted to
stealing. In late July, mother was arrested for a probation violation, and the county filed a
petition alleging that the child was in need of protection or services. A few days later,
mother was sentenced to prison with an anticipated release date in September 2019. In
early August 2018, the custody of the child was transferred to the county for out -of-home

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placement, and the county filed a petition to terminate the parental rights (TPR) of both
mother and appellant-father the next month. A TPR trial was held in December 2018.
Appellant-father was incarcerated at the Otter Tail County Detention Facility when
the child was born in May 2016 . During the course of the first CHIPS case, he had two
parenting time sessions with the child while in that jail, and these sessions were set up by
a social worker from the county. Appellant-father was then transferred to prison, first at
MCF – St. Cloud in mid-December 2016, and then he was involuntarily transferred to MCF
– Faribault, where he would remain until his release in April 2018 . Although the social
worker unsuccessfully attempted to set up parenting t ime while appellant -father was in
prison, in mid-April 2017, the district court found that it was in the child’s best interests to
discontinue attempts to arrange for parenting time at MCF – Faribault because of the
child’s age and the distance that would have to be traveled for such a visit. The social
worker attempted to arrange internet -based parenting time, but the prison did not allow
appellant-father to participate. The social worker testified that during this first CHIPS case,
appellant-father did not meaningfully participate in services or comply with his portion of
the out-of-home placement plan during his incarceration.
Although he was released from prison in early April 2018, appellant -father was
again incarcerated from early June through July 10, 2018. He was then arrested on August
11, 2018, and at the time of the TPR trial in mid -December 2018, appellant -father was
being held at the Todd County Detention Facility awaiting the resolution of his new
criminal charges. Following his arrest, the county did not make any attempts to arrange
parenting time for appellant -father apparently because of the district court’s denials of

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appellant-father’s requests for parenting time on the basis of: (1) the limited relationship
that existed between appellant-father and the child; (2) the child’s age; and (3) the distance
between the child’s foster placement and the jail where appellant -father was being held.
The social worker testified that appellant-father had not financially or otherwise supported
the child or complied with his duties as a parent.
The district court terminated both mother’s and appellant-father’s parental rights in
late December 2018. It found that their parental rights should be terminated under Minn.
Stat. § 260C.301, subds. 1(b)(2), 1(b)(4), and 1(b)(5) (2018). The district court found that
the county had made reasonable efforts to reunify the child with mother and appellant -
father a nd determined that the termination of mother ’s and appellant -father’s parental
rights was in the child’s best interests. This appeal from appellant-father follows.
D E C I S I O N
Appellant challenges the termination of his parental rights. A natural parent is
presumed to be fit to care for his or her child. In re Welfare of Chosa , 290 N.W.2d 766,
769 (Minn. 1980). But “the law secures parents’ right to custody only so long as they shall
promptly recognize and discharge their corresponding obligations.” In re Welfare of
P.J.K., 369 N.W.2d 286, 290 (Minn. 1985) (quotation omitted). Therefore, parental rights
may only be involuntarily terminated if at least one statutory basis for termination exists
and termination is in the child’s best interests. Minn. Stat. § 260C.301, subds. 1(b), 7
(2018). And if a statutory basis exists, then “the best inter ests of the child must be the
paramount consideration.” Id., subd. 7.

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“We review the termination of parental rights to determine whether the trial court’s
findings address the statutory criteria, whether those findings are supported by substantial
evidence, and whether those findings are clearly erroneous.” In re Welfare of K.L.W., 924
N.W.2d 649, 653 (Minn. App. 2019) (quotation omitted), review denied (Minn. Mar. 8,
2019). And while “considerable deference” is given to the district court’s decision, we
must still “closely inquire into the sufficiency of the evidence to de termine whether the
evidence was clear and convincing.” Id. (quotation omitted).
I. Sufficiency of the evidence on the bases for termination
Appellant-father begins by arguing that there was insufficient evidence to terminate
his parental rights on the stat utory bases for termination relied upon by the district court.
We review for an abuse of discretion a district court’s determination that there is a statutory
basis present for terminating parental rights. Id.
In its petition to terminate appellant-father’s and mother’s parental rights, the county
alleged three bases for termination: refusing or neglecting to comply with the duties
imposed upon the parent by the parent/child relationship under Minn. Stat. § 260C.301,
subd. 1(b)(2); palpable unfitness to parent the child under Minn. Stat. § 260C.301, subd.
1(b)(4); and reasonable efforts failing to correct conditions leading to the child’s placement
outside the home under Minn. Stat. § 260C.301, subd. 1(b)(5). The district court
terminated appellant-father’s parental rights under all three bases.1

1 In its order terminating mother ’s and appellant-father’s parental rights, the district court
wrote that it was terminating their parental rights under subdivision 1(b)(2), subdivision
1(b)(4), and then again subdivision 1(b)(4). This second reference to subdivision 1(b)(4)
is a typographical error. Based upon the law and analysis in that part of the order, it is

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The first basis is found in Minn. Stat. § 260C.301, subd. 1(b)(2), which allows for
termination if the district court finds
that the parent has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon
that parent by the parent and child relationship, including but
not limited to providing the child with necessary food,
clothing, shelter, education, and other care and control
necessary for the child’s physical, mental, or emotional health
and development, if the parent is physically and financially
able, and either reasonable efforts by the social services agency
have failed to correct the conditions that formed the basis for
the petition or reasonable efforts would be futile and therefore
unreasonable.
In concluding that this basis had been met, the district court relied on the following: (1) the
fact that appellant -father was incarcerated for most of the child’s life; (2) the fact that
appellant-father “re lied on others to meet [the child’s] physical, mental, and emotional
needs and, unlike [mother], he provided no meaningful support for [the child] when he was
not incarcerated”; and (3) its finding that appellant -father’s incarceration does not justify
his failure to comply with his duties as a parent and th at his incarceration is “part of a
pattern” of having minimal contact and providing no substantial support to the child even
when not incarcerated . The district court also found that continued efforts t oward
reunification would be futile and unreasonable under the circumstances due to the fact that
the child had been in out -of-home placement for 455 days at the time of trial and it was
unknown when appellant-father would be released from his present incarceration.

obvious that the district court intended to refer to subdivision 1(b)(5) as the third basis for
termination. Moreover, the parties on appeal treat the termination as having been on all
three bases. Accordingly, we interpret the district court’s order as terminating mother ’s
and appellant-father’s parental rights on all three bases.

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Appellant-father’s primary argument —which he seems to direct toward all three
bases—is that the district court failed to consider his “conditions as they existed at the time
of the termination hearing.” It is true that the evidence supporting a statutory basis for
termination “must relate to conditions that exist at the time of termination and it must
appear that the conditions giving rise to the termination will continue for a prolonged,
indeterminate period.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).
But the district court did refer to conditions that existed at the time of the termination
hearing. Central to its analysis of whether appellant -father’s parental rights should be
terminated was appellant -father’s near -constant incarceration. While some of this
necessarily includes past incarceration —and therefore a past , rather than present ,
condition—the district court specifically noted appellant-father’s incarceration at the time
of the termination trial and the fact that it was unclear when he would be released from
custody. This comports with the requirement that the condition “continue for a prolonged,
indeterminate period” because (1) it was unclear when appellant -father would be released
and (2) his inability to stay out of jail or prison suggests that he may be reincarcerated in
the future. Moreover, the district court found that appellant-father provided no meaningful
support for the child and instead relied on others for meeting the child’s physical, mental,
and emotional needs. Accordingly, appellant -father’s argument that the district court did
not consider his conditions as they existed at the time of termination is unpersuasive.
Appellant-father also argues that “[i]n the absence of any finding of harmful effects
on [the child], the District Court failed to receive clear and convincing evidence of
Appellant’s neglect or inability to comply with parental duties.” But, as explained above,

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the district court did find that appellant-father provided no meaningful support to the child
and relied on others to meet the child’s physical, mental, and emotional needs. And
appellant-father cites to no authority mandating that a district court find specific harmful
effects. Rather, by its very wording, subdivision 1(b)(2) looks to whether a parent is
complying with his duties; the failure to comply with those duties is not excused just
because someone else undertakes those duties and spares the child from harm.
We conclude that the district court did not abuse its discretion in finding that there
was clear and convincing evidence supporting termination under subdivision 1(b)(2).
Because there was sufficient evidence supporting one basis, and only one basis is required
for termination, it is unnecessary for us to review the district court’s findings on the other
two bases. See P.R.L., 622 N.W.2d at 545 (“Because a court need find only one of the
statutory grounds . . . to terminate a parent’s rights to a child, we need no t address the
remaining grounds for termination considered by the district court.).
II. Reasonable efforts
Appellant-father next argues that the county did not make reasonable efforts to
reunite him with the child. Under Minn. Stat. § 260.012 (a) (2018), the district court must
ensure that the county makes reasonable efforts “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.”
Appellant-father essentially argues that the county failed to make reasonable efforts
to reunite him with the child and rectify the need for out-of-home placement, and that this
failure to provide reasonable efforts was not excused by the fact that he was incarcerated.

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Whether the county made rea sonable efforts is an underlying factual finding that is
reviewed for clear error. See In re Welfare of Children of S.E.P. , 744 N.W. 2d 381, 387
(Minn. 2008). D ue diligence by the county in making reasonable efforts to finalize a
permanent plan for the child means “assess[ing] a noncustodial parent’s ability to provide
day-to-day care for the child and, where appropriate, provide services necessary to enable
the noncustodial parent to safely provide care.” Minn. Stat § 260.012 (e)(2) (emphasis
added). And while incarceration does not excuse the requirement that the county must
make reasonable efforts, incarceration is a circumstance that “might change what qualifies
as ‘reasonable’ under the county’s duty to make ‘reasonable efforts.’” In re Welfare of
A.R.B., 906 N.W.2d 894, 899 (Minn. App. 2018).
In this case, the district court discussed the first CHIPS proceeding and found that
the underlying problem in that case was appellant -father’s incarceration and his resulting
unavailability to provide day-to-day care for the child. The district court explained that
the county made efforts to rehabilitate appellant -father at that time but that he did not
meaningfully participate in the services he was offered because he was incarcerated. And
the district court concluded that despite this provision of services during the first CHIPS
proceeding, the conditions making out -of-home placement necessary continue to exist; in
appellant-father’s case, he continues to be incarcerated. And the district court concluded
that no combination of services or efforts by the county would allow appellant -father to
overcome this obstacle within the statutorily prescribed permanency timeline.
The county made several attempts to provide services to appellant-father during the
first CHIPS proceeding, but it became evident that providing those services while he was

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incarcerated was ineffective. This gives context for the district court’s finding that
continued efforts toward reunification during the second CHIPS proceeding would be futile
and unreasonable under the circumstances. In light of appellant -father’s incarceration at
the time of the TPR trial and his “inability to maintain his freedom,” it would not have been
appropriate for the county to “provide services necessary to enable the noncustodial parent
to safely provide” care of the child. Minn. Stat. § 260.012 (e)(2). Accordingly, we
conclude that the district court’s finding that the county made reasonable efforts is not
clearly erroneous and that appellant-father’s argument fails.
III. Best interests
Appellant-father also argues that termination was not in the child’s best interests.
The involuntary termination of parental rights requires not only that at least one statutory
basis be present but also that termination is i n the child’s best interests. In re Welfare of
Children of K.S.F. , 823 N.W.2d 656, 668 (Minn. App. 2012). A best -interests analysis
involves weighing three primary factors: “the child’s interest in maintaining the parent -
child relationship, the parent’s interest in maintaining the parent-child relationship, and any
competing interest of the child.” In re Welfare of M.A.H. , 839 N.W.2d 730, 744 (Minn.
App. 2013). A nd these competing interests include “a stable environment, health
considerations, and the child’s preferences.” Id. A best-interests determination is reviewed
for an abuse of discretion. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 905 (Minn.
App. 2011), review denied (Minn. Jan. 6, 2012).
The district court found that the child had no interest in maintaining a parent -child
relationship with appellant -father because no such relationship had been meaningfully

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established. It also found that the child’s competing interests favored termination because
the child needs “stability and a permanent home.” This need for stability, the district court
found, was heightened because of the length of time that the child had lived in out-of-home
placement (4 55 days over the course of two CHIPS proceedings). It also found that
appellant-father loved the child and had an interest in maintaining the ir relationship but
that the child’s needs for permanency and stability outweighed appellant-father’s interest.
With regard to the first best -interests factor—the child’s interest—appellant-father
argues that “there was no information or evidence provided of any therapist
recommendations or opinions as to what is in [the child’s] best interests.” While there was
no therapist testimony, there was testimony from the social worker managing the child’s
case. The social worker recommended that both parents’ parental rights should be
terminated, and when asked, “How would that serve [the child’s] best interests?” answered,
“We are way over for permanency timelines. And [the child] is so young. [The child]
needs a stable environment and someone that is constantly there for [them].” While this
reasoning applies more to the third factor, competing interests, it shows that appellant-
father is incorrect to the extent that he argues that there was no testimony saying that
termination was in the child’s best interests. And to the extent that he argues that this
recommendation must come from a therapist specifically, he cites to no law that stands for
that proposition, and we reject this argument.
Appellant-father does not explicitly challenge the district court’s finding that the
relationship between him and the child was n ever meaningfully established, b ut he does
emphasize in his brief that he spent some time with the child when he was released from

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custody and that between July 12 and 24, 2018 , he had five separate parenting -time
sessions with the child. Appellant-father himself testified that he had only ever been in the
same room as the child seven or eight times over the course of the child’s life. Because
appellant-father and the child have spent so little time together, we conclude that the district
court’s finding that they never established a meaningful relation ship is supported by the
record. This fact supports the finding that the child had no interest in the parent -child
relationship.
The only other relevant argument that appellant -father makes with regard to best
interests is that there was “no evidence presented that there are any issues of Appellant that
impact his ability to provide basic care and adequate nutrition for his child.” It seems that
appellant-father is referring to the third factor, competing interests. But appellant -father
testified himself tha t when mother was incarcerated , he provided no food or financial
support to the child. And his argument does not address the concern that the child has been
living in an unstable environment due to continually being placed out of the home.
We conclude that the district court did not abuse its discretion in determining that
termination of appellant-father’s parental rights was in the child’s best interests.
Affirmed.