In re the Matter of the Welfare of the Children of: B. M. P.-R., Mother.

This opinion will be unpublished and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
A19-0603

In re the Matter of the Welfare of the Children of:
B. M. P.-R., Mother.

Filed October 21, 2019
Reversed and remanded
Bratvold, Judge

Rice County District Court
File No. 66-JV-18-2917

Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota (for appellant)

John Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney, Jennifer
Nelson, Assistant County Attorney, Faribault, Minnesota (for respondent county)

Heather Feikema, Faribault, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant B.M.P.-R. (mother) challenges the district court’s termination of her
parental rights. Because respondent Rice County Social Services (the county) failed to
make reasonable efforts to reunite mother and her children, we reverse the decision
terminating mother’s parental rights, and remand for the district court to direct the county
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to develop a case plan with mother, obtain court approval, and allow a reasonable period
for mother to complete the case plan.
FACTS
The following summarizes the district court’s written factual findings, prepared
after the termination trial. Mother is the biological parent of B.A.M. (born in 2013) and
L.E.P. (born in 2017) (the children).
Mother was incarcerated and returned to jail after giving birth to L.E.P., who was
born prematurely on December 6, 2017 . L.E.P. remained in the hospital’s neonatal
intensive care unit. In mid -December 2017, mother was released from jail. On
December 23, mother was found in a public restroom unconscious and unresponsive as a
result of an overdose. Mother was hospitalized and law enforcement placed the children on
a 72-hour hold.
On December 28, 2017, the county filed a child-in-need-of-protection-or-services
(CHIPS) petition, which described mother’s substance abuse and stated that the children’s
maternal great-grandparents had cared for B.A.M. since he was a baby, that mother had
little involvement in B.A.M.’s life, and that hospital staff was concerned that mother had
spent little time with L.E.P . The district court later appointed a guardian ad litem (GAL)
for the children. The county assigned Keri Butzer as the case manager for the children.
Although released from the hospital, mother failed to attend two court hearings.
First, mother failed to attend the emergency protective-care hearing. The district court
continued the county’s physical and legal custody over the children; B.A.M. continued in
his placement with his great-grandparents, and L.E.P. continued in his medical placement
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until his discharge, when he was placed in foster care. Second, mother failed to attend
the admit/deny hearing. The district court continued the hearing; mother attended the
continued hearing and entered a denial. At the hearing, Butzer spoke with mother “about
the types of things she would have to do for reunification with the [c]hildren to occur.”
Police arrested mother in January 2018 for a probation violation. Mother
participated in a chemical-dependency assessment and entered in-patient treatment
voluntarily at Cranberry Acres with a diagnosis of “severe Opioid Use Disorder and severe
Stimula[nt] Related Disorder, Amphetamine type.”
In February 2018, mother did not attend court hearings or scheduled meetings, did
not respond to social services, and did not request visitation with her children. Mother
failed to attend a March hearing to adjudicate the CHIPS petition, and the county proceeded
by default. The district court adjudicated the children CHIPS and continued their temporary
out-of-home placements. Mother also failed to appear at the disposition hearing in April,
after which the district court entered a written order for mother to “maintain safe and clean
housing for the Children,” avoid alcohol and drug use, submit to “random chemical
testing,” and “cooperate with [the county] for the purposes of case planning.” The district
court directed service of this order on mother and the county.
The district court found that Butzer’s contact with mother was “minimal” and
involved “several text messages.” The district court also found that, sometime in February
or March, Butzer developed a case plan for mother “without Mother’s input.” As described
above, it appears that at the time Butzer prepared the case plan, mother was out of contact
with the county. Mother also failed to attend a scheduled family meeting on April 11, 2018.
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Butzer then learned that mother had been arrested because of a parole violation. At th e
violation hearing, mother executed her sentence.
Mother remained at the Hennepin County Workhouse (jail) from mid-April until
September 26, 2018. While in jail, mother had a counselor, completed a 12-week
chemical-dependency treatment program, and participated in a “read -to-me-program” for
the children. Mother requested visitation with her children and did visit by video about
once a week, beginning about halfway through her incarceration.
The district court found that Butzer “did not ever make a visit” to the jail. Mother
tried to telephone Butzer several times while in jail. Butzer testified that she did not answer
because she “didn’t know how to take collect phone calls.” Butzer spoke with mother’s jail
counselor in August or September 2018, and, about a week before mother’s release, the jail
counselor initiated a telephone conference with mother, Butzer, and the GAL to set up
transition services for mother.
Also just before her release, mother attended a review hearing, where the district
court continued the children’s out -of-home placements and ordered mother to complete
requirements for her treatment program, abstain from controlled substances, establish safe
housing, and sign releases for the county to obtain information regarding her participation
in services.
After mother was released from jail, she moved to Owatonna to live with the mother
of B.A.M.’s alleged father and attended outpatient chemical-dependency treatment at
Fountain Centers. Butzer later testified and agreed that mother’s contact was “pretty good”
at this time. The district court found that Butzer had a discussion with mother about “what
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she needed to do” to be reunified with the children. Mother had some supervised visits with
the children. Butzer also referred mother to parent education services, but Butzer later
learned that mother “wasn’t meeting with the [program] mentor.”
Mother moved to Maple Grove to live with her mother in November 2018. Around
this time, Alexandra Welsh became the case manager. During the termination trial, mother
admitted she did not tell the county about her move. In mid-November, Fountain Centers
informed Welsh that it had discharged mother after three weeks because of poor
attendance. Welsh arranged mother’s supervised visitations with the children, but
suspended visits after mother failed to attend two consecutive visits and did not reply to
Welsh’s text messages. Welsh “unsuccessfully attempted to contact Mother multiple times
at multiple phone numbers.” Mother relapsed and failed to attend scheduled meetings with
the county on November 9, 14, 21, and December 3. Mother also attended a hearing on
December 13, but failed to provide a urinalysis sample.
On December 12, 2018, the county petitioned to terminate mother’s parental
rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (7), and (8) (2018). The petition
detailed mother’s failure to cooperate with the county, her April 2018 arrest, her failure to
complete treatment, and her failure to communicate with the case manager. Mother later
entered a denial at her admit/deny hearing.
Mother requested another chemical-dependency assessment which led her to enter
a Brooklyn Park treatment program in January 2019. M other was still in treatment as of
the trial. The district court found that mother credibly testified that “she feels the
[m]ethadone is helping with her addiction.”
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The district court conducted mother’s termination trial on February 25 and 26, 2019.
On behalf of the county, the two case managers (Butzer and Welsh) and the GAL testified.
In addition to the facts set out above, all three of the county’s witnesses testified that a
termination of mother’s parental rights is in the children’s best interests.
Mother testified, as did her mother. Mother testified about her history of drug use
and stated that she relapsed before going to jail (February -April 2018), and again about a
month after being released from jail. She stated that she would soon be starting a new job.
In a written order, the district court terminated mother’s parental rights on March
28, 2019.1 The district court stated that whether the county had made reasonable efforts is
a “close” question because the county did not comply with the statutory requirements for
a case plan. The district court found the case plan “was created several months late and was
not filed with the court”; also, the case plan “was not created . . . with the cooperation of
[mother]” because mother was not in contact with the agency. Finally, the case plan “was
not offered as evidence in [the] trial” and it is “unknown whether the case plan was ever
updated.” The district court concluded that it “cannot find” that the county made reasonable
efforts “in regards [to] the out-of-home placement plan.”
The district court determined, however, that “[m]other’s unavailability during the
great majority of [the] case was a barrier” to the county providing services, and that it was
“not reasonable to expect the agency to provide services to [ m]other when she was not in
contact and her whereabouts were unknown.” Yet, the district court also found that it was

1 An amended order provided minor corrections on the custodial status of the children.
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unreasonable the case manager did not contact mother during her incarceration and that
mother was unable to contact the county because it refused to accept collect calls. The
district court determined that “multiple statutory bases support[ed] . . . termination,” and
that it is in the best interests of the children to terminate mother’s parental rights. Mother
appeals.
D E C I S I O N
Generally, appellate courts review a district court’s order decision to terminate
parental rights for an abuse of discretion. See In re Welfare of Child of R.D.L., 853 N.W.2d
127, 136 (Minn. 2014). In doing so, appellate courts “closely inquire into the sufficiency
of the evidence to determine whether it was clear and convincing[,]” and affirm a
termination of parental rights if (1) at least one statutory ground for termination is
supported by clear and convincing evidence, (2) termination is in the best interests of the
child, and (3) the county has made reasonable efforts to reunite the family. In re Welfare
of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). Mother’s appeal focuses on one
issue: whether the county made reasonable efforts to reunite the family. Specifically,
mother argues that we must reverse the district court’s termination of her parental rights
because the county did not provide a court-approved case plan stating the steps she must
take to correct the conditions leading to the out-of-home placement.2

2 Mother also argues that the district court clearly erred in determining that the county made
reasonable efforts to reunify the family under Minn. Stat. § 260C.301, subd. 1(b)(5).
Because a court-approved case plan is typically a threshold requirement for termination,
we do not separately address this argument.
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If the county determines that a child should be removed from a parent, it
“shall . . . prepare an out-of -home placement plan addressing the conditions that [the]
parent must meet before the child can be in that parent’s day -to-day care.” In re
Welfare of A.R.B., 906 N.W.2d 894, 897 (Minn. App. 2018) (quoting Minn. Stat.
§ 260C.219(a)(2)(i) (2016)). The plan must be “a written document” prepared “jointly with
the parent or parents or guardian of the child.” Minn. Stat. § 260C.212, subd. 1(b) (2018).
“The plan ‘shall be’ signed by the parent, submitted to the court for approval, and explained
to all persons involved in its implementation.” A.R.B., 906 N.W.2d at 897 (quoting Minn.
Stat. § 260C.212, subd. (1)(b)(1), 3(c)).
The case plan must describe “the specific reasons for the placement of the child in
foster care, and when reunification is the plan, a description of the problems or conditions
in the home of the parent or parents which necessi tated removal of the child from home
and the changes the parent or parents must make for the child to safely return
home,” as well as the “services offered and provided to prevent removal of the child
from the home and to reunify the family.” Minn. Stat. § 260C.212, subd. 1(c)(2), (3)
(2018). Unless the district court conducts case-plan reviews, the county must conduct “an
administrative review of the out-of-home placement plan of each child placed in foster care
no later than 180 days after the initial placement of the child in foster care and at least every
six months thereafter” if the child is not returned home. Minn. Stat. § 260C.203(a) (2018).
The case plan “must be monitored and updated at each administrative review.” Id.
In a proceeding to terminate parental rights, the district court must determine
whether the county has provided reasonable efforts to rehabilitate the parent and reunite
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the child and parent. In re Children of T.R., 750 N.W.2d 656, 664 (Minn. 2008).
“Reasonable efforts at rehabilitation are services that go beyond mere matters of form so
as to include real, genuine assistance.” In re Welfare of Children of S.W., 727 N.W.2d 144,
150 (Minn. App. 2007) (quotations omitted), review denied (Minn. Mar. 28, 2007). For
efforts to be reasonable, the services the county offers must be: (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).
Here, the district court found that the county prepared a case plan without mother’s
input, did not obtain court approval, and never filed the case plan. In fact, the district court
found that the county did not offer a case plan into evidence during mother’s termination
trial. The district court also found that it was “unknown” whether the county ever updated
the case plan. While mother acknowledges in her brief that “Butzer did provide the case
plan to [her] at [a] hearing,” she argues that the county never completed the case plan,
failed to update it, did not jointly prepare it with her, and did not file it in district court as
required by statute.
The county acknowledges that it never filed a case plan with the district court, but
argues that it made reasonable efforts under the circumstances because mother’s “lack of
cooperation prevented [the county] from effectively implementing the plan.” A county’s
failure to provide a case plan “does not automatically warrant reversal if the circumstances
render the lack of a case plan excusable.” A.R.B., 906 N.W.2d at 898. But “the lack of a
case plan is excusable only in extreme circumstances, like when a parent repeatedly
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abandons her child and states that she wishes to relinquish her parental rights . . . or when
efforts to ‘reunite’ the family would be ‘futile’ because, for example, no parent-child
relationship ever existed.” Id.
Mother argues that this case is similar to In re Welfare of A.R.B.; there, f ather was
arrested on an unrelated charge at the beginning of the CHIPS case and was incarcerated
at the county jail throughout the CHIPS case and the associated termination proceedings.
Id. at 896-97. Father initially resisted a case plan, but he later “expressly invited one.” Id.
at 898.3 The county never developed a case plan for father, and the district court terminated
his parental rights. On appeal, we reversed the termination because no “extreme
circumstances” excused the county’s failure. Id. at 898-99. We reasoned, in part, that the
county identified “nothing” that prevented social services from creating a case plan with
father “during his incarceration period.” Id. at 899.
Here, the district court stated: “This court cannot find that the county made
reasonable efforts in regards [to] the out-of-home placement plan.” The district court also
found, however, that mother’s “unavailability during the great majority of this case” was a
“barrier” to providing services. Specifically, the district court found that mother was “out
of contact with the case manager during February and March 2018 and again from
November 2018 through early February 2019,” failed to notify the county of her
whereabouts, and failed to attend court hearings. In short, the district court appears to have
excused the county’s failure to provide a case plan because mother failed to communicate

3 In A.R.B., the mother also sought to regain custody, but the county prepared a
court-approved case plan with mother, which she failed to complete. Id. at 896.
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with the county or to attend court hearings. Despite these findings about mother, the district
court also found that whether the county made “reasonable efforts” is a “close” question.
This is troubling because the county must prove it made reasonable efforts by clear and
convincing evidence.
On this record, the district court’s unavailability finding does not present either of
the “extreme circumstances” that A.R.B. identified—abandonment and futility. The county
did not request a finding of abandonment, and the district court did not find abandonment.4
The county requested a futility-of-reasonable-efforts finding during the CHIPS case, but
the district court concluded that it “will not make a finding that continued reasonable efforts
to reunify would be futile.”5 And in its termination order, the district court noted that it had
“never ruled in the course of the case that the provision of reasonable efforts could cease.”
Accordingly, the district court rejected the idea that reunification efforts would be futile.
In contrast to the “extreme circumstances” identified in A.R.B., the district court’s
finding that mother was unavailable implies that mother had periods of contact, and the
record supports this inference. While mother was incarcerated , she attempted to call

4 The county later cites In re Welfare of R.M.M. to support its position that a case plan is
not required. 316 N.W.2d 538, 542 (Minn. 1982). In A.R.B., we cited R.M.M. as an example
of “extreme circumstances.” 906 N.W.2d at 898 (citing R.M.M., 316 N.W.2d at 542). The
parent in R.M.M. admitted abandoning her child and “on several occasions wanted to
terminate her parental rights.” R.M.M., 316 N.W.2d at 541. Under these circumstances, the
supreme court affirmed the district court’s decision to terminate the parent’s parental rights
despite the lack of a case plan. Id. at 542. Here, the facts are distinguishable from R.M.M.
because mother did not admit to abandoning her children or state that she wanted to
terminate her parental rights.
5 The district court stated that it did not make the finding because the county filed the
permanency petition “so late that the court was unable to review [it].”
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Butzer from jail, but Butzer did not communicate with mother until one week before her
release from jail. As in A.R.B., the county identifies nothing that prevented it from creating
a case plan with mother while she was incarcerated. Id. at 899. Before mother went to jail,
Butzer prepared a case plan without mother, but the district court did not find that Butzer
ever updated the plan. Also, mother was in contact with the county after her release from
jail in September 2018. On this record, and particularly in light of the county’s rejection of
mother’s collect calls, the lack of communication between mother and the county does not
present “extreme circumstances” excusing the county’s failure to provide a court-approved
case plan. See A.R.B., 906 N.W.2d at 898.
Still, the county argues that the “failure to file a case plan does not warrant reversal”
because mother was otherwise aware of what she needed to accomplish for reunification
to occur. The county argues that both Butzer and the district court “conveyed the
expectations” to mother for reunification.
We reject the county’s argument for the same reason we rejected a similar argument
in A.R.B., where the county argued that father “knew the steps he needed to take to correct
the conditions that led to his son’s placement and therefore failing to complete a plan was
a harmless error.” Id. at 899. In A.R.B., we concluded that “pointing to a deficient parent’s
personal awareness of his significant issues that triggered out-of -home placement is no
substitute for the case- plan process, which includes the directive document required by
statute.” Id. The same reasoning applies to mother’s awareness of the reasons for the
out-of-home placement of her children.
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The county also cites In re Welfare of J.J.L.B., 394 N.W.2d 858, 859 (Minn. App.
1986). In J.J.L.B., a mother sought to regain custody of her children after the county filed
a CHIPS petition and placed her children in foster care. Id. The district court issued several
orders with “guidelines for correcting her problems.” Id. at 863. The mother lived a
“transitory lifestyle” with a carnival, and when she “settled down” at one residence, she
responded “with anger and threats” to social services. Id. at 860. The county petitioned to
terminate the mother’s parental rights, which the district court granted despite the county’s
failure to provide a timely case plan to the mother. Id. at 863.
We affirmed the district court in J.J.L.B. for two reasons. Id. First, we reasoned that
the county’s failure to provide a case plan was “in part a result of [the mother’s] failure to
cooperate and transitory lifestyle.” Id. Second, we reasoned that the district court had
provided guidelines for reunification to the parent. Id. We concluded the lack of a case plan
was not reversible error under these circumstances. Id.
The county contends that, like in J.J.L.B., the district court’s orders in mother’s
CHIPS case established steps for reunification, such as ordering mother to abstain from
using drugs and alcohol. The record establishes that mother was aware of these orders. We
distinguish J.J.L.B., however, because the county provides no reason for its failure to
communicate with mother or to provide services and address conditions while mother was
in jail. And the county also never filed a case plan in this case, whereas a case plan was
filed in J.J.L.B., albeit late.
The county’s failure to prepare a court-approved case plan with mother’s input
and court approval disregards the statutory requirements. See Minn. Stat. § 260C.212,
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subd. 1. On this record, the district court’s orders that directed mother to take preliminary
steps for reunification did not serve as a substitute for a court-approved case plan. 6
Therefore, we hold that the district court abused its discretion by terminating mother’s
parental rights because the county did not make reasonable efforts to reunite mother and
her children by providing a case plan, and the district court did not make a finding of
abandonment or futility excusing a case plan. See S.E.P., 744 N.W.2d at 385 (county must
always make reasonable efforts); A.R.B., 906 N.W.2d at 898 (holding that the lack of a case
plan may be excusable when the record supports a finding of abandonment or futility).
Although we conclude that the county did not make reasonable efforts at
reunification, we do not suggest that the district court alter the children’s out- of-home
placements. We hold only that the county’s failure to provide a case plan consistent with
the statutory requirements requires reversal of the district court’s order terminating
mother’s parental rights. We remand for the district court to allow the county to prepare a
case plan jointly with mother, obtain court approval, and allow mother the opportunity to
complete the case plan.
Reversed and remanded.

6 The county also cites two unpublished opinions in support of its argument. But
unpublished opinions are not precedential. See Minn. Stat. § 480A.08, subd. 3(c); Gen.
Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 582 n.2 (Minn. 2009) (stating
that unpublished opinions do not constitute precedent).