In re the Matter of the Welfare of the Child of: J. B.-M. and A. A., 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This opinion will be unpublished and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
A19-0902

In re the Matter of the Welfare of the Child of:
J. B.-M. and A. A., Parents.

Filed December 16, 2019
Affirmed
Cochran, Judge

Nobles County District Court
File No. 53-JV-19-10

Travis J. Smith, Kayla M. Johnson, Smith & Johnson, Slayton, Minnesota (for appellants
J.B.-M. and A.A.)

Joseph M. Sanow, Nobles Co unty Attorney, Braden M. Ho efert, Assistant County
Attorney, Worthington, Minnes ota (for respondent Nobles County Community Services
Agency)

Angie Willers, Worthington, Minnesota (guardian ad litem)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant-parents challenge th e district court’s order terminating their parental rights
to their newborn child. Appellants argue that the district court erred by concluding that they
failed to rebut the stat utory presumption that they are palp ably unfit to be parties to the
parent-child relationship. The statutory presumption applies because appellants previously

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had their parental rights terminated in a proceeding involving other children. Because the
district court did not err when it concluded that appell ants failed to rebut the statutory
presumption, we affirm.
FACTS
Appellants J.B.-M. (mother) and A.A. (father) 1 have been in a relationship since
2009. The parties have a daughter, Am.A., born in March 2013, and mother has a son from
a previous relationship—Y.B., born in February 2008.
In July 2017, respondent Nobles County Community Se rvices Agency (county)
filed a petition under Minn. St at. § 260C.301, subd. 1(b)(4 ), (5) (2016), to terminate
parents’ parental rights to Am.A., and mother’s parental rights to Y.B. The district court
granted the petition in December 2017, finding that the children were subject to a “pattern
of abuse” while in parents’ care, which included the children being hit by belts and phone
cords that sometimes left mark s on the children. The district court also found that the
county had established a cas e plan for parents, which included anger management
programming and domestic violence evaluations and treatment, but that parents failed to
meaningfully participate in the case plan. The district court concluded that the county
proved by clear and convincing evidence that parents were palpably unfit to be parties to
the parent-child relationship and that reasonable efforts by th e county under the direction
of the court failed to correct the conditio ns leading to the out-of-home placement of
Am.A. and Y.B.

1 Mother and father will collectively be referred to as “parents.”

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In January 2019, parents had another child, Ad.A. (the child), who is the subject of
these proceedings. The child was removed fro m the home six days af ter his birth, and a
petition to terminate parents’ parental rights to the child was filed later that day. The
petition alleged that under Minn. Stat. § 2 60C.301, subd. 1(b)(4) (2018), parents are
presumed to be palpably unfit to parent the child due to a prior involuntary termination of
parental rights (TPR) determinat ion, and that termination of pa rents’ parental rights is in
the best interests of the child.
At trial, evidence was pres ented that shortly after th e child was removed from the
home, law enforcement was dispatched to parents’ home because mother was suicidal. The
officer who responded to the call testified th at upon his arrival at parents’ home, he
observed mother with a knife in her right hand and a cut on her left wrist. The officer also
testified that he responded to a second incident involving mother in March 2019.
According to the officer, mother was sitting on a chair with a rope around her neck that
was tied to the top of a stair case. Mother was al so holding a butche r knife and the gas
stove was turned on. Mother was subsequen tly transported to the hospital and was later
determined to be mentally ill. Although mother was present at trial, she did not testify.
Father testified that he and mother pr ovided the appropriate care for the newborn
child, and that after the child was removed from the home, they regularly exercised their
visitation with the child. Father also testified that he recently attended two therapy sessions
and has been reading books on pa renting. He further testif ied that he now understands
there are significant differences in attitudes between his home country of El Salvador and
the United States related to physical discip line and that he has learned that physical

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discipline is not necessary. And father testified that since the last TPR proceeding, he and
mother have taken an “oath” not to spank their children.
On cross-examination, fath er denied ever hitting Am.A. or Y.B. with belts and
phone cords. And when asked what parenti ng techniques he had used with Am.A. and
Y.B. that he now thinks are inappropriate, father answered only, “[t]o take away the
television for one month and the tablet for one month.”
The district court concluded that unde r Minn. Stat. § 260C.301, subd. 1(b)(4),
parents are presumed to be palpably unfit to be parties to the parent-child relationship
because of the termination of parents’ pare ntal rights to Am.A., and the termination of
mother’s parental rights to Y.B., in the prior proceeding. The district court then determined
that parents “have not satisfied their bur den of production to rebut the statutory
presumption of palpable unfitness.” The district court also determined that the county has
proven “by clear and convincing evidence that termination of [parents’] parental rights [to
their newborn child] would be in the child’s best interests.” The distri ct court, therefore,
granted the county’s petition to terminate parents’ parental rights to the child. This appeal
follows.
D E C I S I O N
Parents challenge the district court’s termin ation of their parental rights to the child.
Involuntary termination of parental rights is only appropriate wher e there is clear and
convincing evidence that a statutory ground for termination exists and termination is in the
child’s best interests. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 137 (Minn. 2014).
We review a district court’s “termination of parental rights to determine whether the district

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court’s findings address the statutory criteria and whether 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 (M inn. 2008). But a dist rict court’s “ultimate
determination” to terminate a parent’s parental rights 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).
“Typically, the natural parent is presumed to be fit and suitable to be entrusted with
the care of his or her child.” In re Welfare of D.L.R.D. , 656 N.W.2d 247, 250 (Minn.
App. 2003). But parental rights may be involuntarily terminated if the parent is “palpably
unfit to be a party to the parent and chil d relationship.” Minn. Stat. § 260C.301,
subd. 1(b)(4). A parent is presumed to be pa lpably unfit to parent “upon a showing that
the parent’s parental rights to one or more other children were involuntarily terminated or
that the parent’s custodial rights to another child have been involuntarily transferred.” Id.
The statutory presumption is a rebuttable presumption that shif ts the burden of
production to the parent. In re Welfare of Child of J.A.K. , 907 N.W.2d 241, 245-46
(Minn. App. 2018), review denied (Minn. Feb. 26, 2018). The parent must produce
evidence that could support a finding that “the parent is suitable to be entrusted with the
care” of the child. R.D.L., 853 N.W.2d at 137 (quotation omitted). If the parent introduces
such evidence, then the “presumption is rebutted and has no further function at the trial.”
J.A.K., 907 N.W.2d at 246 (quotation omitted). Th is court applies a de novo standard of
review to the district court’s determination as to whether the parent presented evidence
sufficient to rebut the statutory presumption. Id.

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Parents argue that the district court erre d by (1) considering “the underlying facts of
the previous termination” and (2) concluding that parents failed to rebut the statutory
presumption of unfitness.
I. The district court did not err by co nsidering the grounds for the previous
termination in determining whethe r parents rebutted the statutory
presumption.

Parents’ parental rights were termin ated under Minn. Stat. § 260C.301,
subd. 1(b)(4). That statute provides that pa rental rights may be terminated based on a
finding
that a parent is palpably unfit to be a party to the parent and
child relationship because of a c onsistent pattern of specific
conduct before the child or of specific conditions directly
relating to the parent and child relationship either of which are
determined by the court to be of a duration or nature that
renders the parent unable, fo r the reasonably foreseeable
future, to care appropriately for the ongoing physical, mental,
or emotional needs of the child. It is presumed that a parent is
palpably unfit to be a party to the parent and child relationship
upon a showing that the parent’s parental rights to one or more
other children were involuntarily terminated . . . .

Minn. Stat. § 260C.301, subd. 1(b)(4).
Parent s argue that the district court erred by considering the “underlying facts of the
previous termination to de termine whether [parents] had rebutted the statutory
presumption.” To support their claim, parents refer to the language contained in the first
part of section 260C.301, subd ivision 1(b)(4), that “speaks ex clusively of ‘the’ child and
‘the’ parent and child relationship.” Parents claim that because the statute refers only to
“the” child and to “the” parent-child relations hip, the “evidence prod uced by a parent to
rebut the presumption of palpable unfitness need only concern [t he parent’s] conduct

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before that child,” and the parents’ “relationship” with that child.” And parents contend
that “[e]vidence of conditions relating to other children, . . . specifically the children who
were the subjects of the previous termination, is irrelevant.” We disagree.
The first part of Minn. Stat. § 260C.301, subd. 1(b)(4), contemplates that parental
rights may be terminated for palpable unfitness. The second sentence then provides that it
is presumed that a parent is palpably unfit if that parent’s parental rights to one or more
children were previously terminated. Id. The presumption of palpable unfitness stems
from the specific underlying concern related to the previous termination proceeding. But
that presumption can be rebutted. J.A.K., 907 N.W.2d at 245-46 (indicating that the
statutory presumption under Minn. Stat. § 260C.301, subd. 1(b)(4), is a rebuttable
presumption). To rebut the presumption of palpable unfitness, a parent must produce
evidence that could support a finding that the pa rent is “suitable to be entrusted with the
care” of the child. R.D.L., 853 N.W.2d at 137 (quotation omitted). Thus, in order to rebut
the presumption of palpable unfitness, evidence of the previous termination is relevant and
necessary to determine whether the parent is no w fit to be entrusted with the care of the
child because he or she has a ddressed the condition or conditions that led to the previous
termination. See J.A.K., 907 N.W.2d at 246-48 (examini ng the grounds supporting prior
termination of mother’s parental rights in determining whether the mother rebutted the
presumption of palpable unfitness).
Here, parents’ parental rights were previously terminated under Minn.
Stat. § 260C.301, subd. 1(b)(4), after the dist rict court determined that parents were
palpably unfit to be parties to the parent-child relationship du e to a “pattern of abuse” of

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the children by both parents. Because of the prior i nvoluntary termination, parents were
presumed to be palpably unfit when the child was born. In order to rebut this presumption,
parents were required to produce evidence to support a finding that they were suitable to
be entrusted with the care of the child. Without consideration of the previous termination
proceeding, it would be impossible for the district court to make a valid determination as
to whether parents have addressed the underlying concern of abuse. Therefore, the district
court did not err by consider ing the underlying facts of the previous termination to
determine whether appellants had rebutted the statutory presumption.
II. The district court did not err in conc luding that parents failed to rebut the
presumption of palpable unfitness.

Parents also contend that the district cour t erred when it concluded that parents did
not produce sufficient evidence to rebut the statutory presumption of palpable unfitness.
We are not persuaded.
To rebut the presumption, a parent needs to produce enough evidence “to support a
finding that the parent is suitable to be entrusted with the care of the children.” J.A.K.,
907 N.W.2d at 246 (quotation omitted). The evidence necessary to rebut a presumption of
palpable unfitness need only “create a genuine issue of fact.” Id. In determining whether
a parent’s evidence rebuts the presumption that the parent is palpably unfit, a court should
credit and consider the evidence without weighing it against any contrary evidence. See In
re Welfare of Child of J.W., 807 N.W.2d 441, 445-47 (Minn. App. 2011) (concluding that
the parent’s evidence, “if believed,” would support a finding that she was not palpably

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unfit, and that the evidence was therefore suffi cient to rebut the statutory presumption),
review denied (Minn. Jan. 6, 2012).
Parents argue that father’s testimony, ta ken as true, rebutted the presumption that
parents are palpably unfit. And parents cont end that in making a contrary decision, the
district court erroneously compared J.A.K. to the circumstances in this case.
In J.A.K., this court determined that mother rebutted the statutory presumption that
she was palpably unfit. 907 N.W.2d at 247. This court determined that mother rebutted
the presumption by presenting testimony from her therapist that mother was “doing great,”
as well as evidence that mother (1) had consulted with a psychiatrist and had begun taking
medication for her depression; (2) had maintained her sobriety for more than a year; (3) had
maintained consistent employment for two consecutive years; (4) had completed a
parenting assessment and regularly attended s upervised visits with her child; and (5) was
participating in therapy. Id. at 246-47.
The district court determined that “[i]n comparison with the mother in J.A.K.,”
parents failed to meet their burden of production to produce evidence sufficient to support
a finding that they are not palpably unfit. “Whether a parent’s evidence satisfies the burden
of production must be determined on a case-by-case basis.” J.W., 807 N.W.2d at 446. And
the supreme court has stated that the presumption that a parent is palpably unfit is “easily
rebuttable.” R.D.L., 853 N.W.2d at 137. Consequently, we agree that the quantum of
evidence produced in J.A.K. does not necessarily estab lish a baseline for determining
whether a parent has rebutted the presumption of palpable unfitness.

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Nonetheless, mother did not testify at trial and very little evidence was produced on
her behalf to rebut the presumption of palpable unfitness. The evidence relating to mother
consisted of father’s testimony that mother provided the appropriate care for the child
during the first six days after he was born, and that mother regularly exercised her visitation
with the child after he was re moved from the home. Father al so testified that mother has
participated in “learning and growing since the last case,” and that they “took an oath” not
to spank the child. Moreover, father testified that mother has been receiving therapy since
the child was removed from the home. But father acknowledged that mother is depressed
and has “had suicidal thoughts.” No furthe r evidence was produced on mother’s behalf
indicating that she has addressed the un derlying concern from the previous TPR
proceeding—the allegations of physical abuse of the children. On this limited record, the
district court did not err in ruling that mother failed to rebut the statutory presumption that
she is palpably unfit to be a party to the parent-child relationship.
Similarly, we discern no error with respect to the district court’s determination that
father failed to rebut the statutory presumption that he is palpably unfit to be a party to the
parent-child relationship. The only evidence father produ ced was his own testimony.
Father testified that he provided appropriate care for the child for the six days the child was
in the home, that he regularly exercised his vi sitation with the child, and that he recently
started seeing a therapist. He also testified that he has made an effort to educate himself
about the difference in attitudes related to physical discipline between his home country of
El Salvador and the United States by readin g a number of parenting books, and that his
efforts have helped him understand that phys ical discipline is not necessary. But on

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cross-examination, father downplayed his prior abuse of Am.A. and Y.B. by claiming that
he is not a “bad father” for having “spank[e d]” his children. And, father denied hitting
Am.A. and Y.B. with belts and cords, despite the prior TPR order finding to the contrary.
When asked what parenting techniques he used with Am.A. and Y.B. that he now thinks
are inappropriate, father answered only “[t] o take away the television for one month and
the tablet for one month.” Father further testified on cross-examination that Y.B. was lying
about the prior abuse he suffered. Father’s testimony demonstrat es that he neither
understood, nor addressed, the reasons for the previous termination of his parental rights.
As the district court found, father “at no time” has taken “personal responsibility for his
role in the prior TPR case” and, in fact, co ntinues “to contest the necessity for it.” The
record supports the district court’s determina tion that father failed to “produce sufficient
evidence to support a finding” that he is curr ently suitable “to be entrusted with the care”
of this child. The district court did not err in ruling that father failed to rebut the statutory
presumption that he is palpably unfit to be a party to the parent-child relationship.
Parents argue that the district court err oneously weighed the credibility of father’s
testimony in reaching its conclusion that ne ither mother nor father had rebutted the
statutory presumption. We disagree. A careful examination of the district court’s findings
reveal that the district court did not weigh the credibility of father’s testimony. Rather, the
district court considered father’s testimony as a whole and correctly found that it was
“inconsistent.” Further, as explained above, the district court properly determined that both
father and mother failed to produce sufficient evidence to demonstrate that they are
presently suitable “to be entrusted with the care” of the child. Parents would have the court

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look only at certain pieces of father’s te stimony and ignore other pieces in determining
whether the presumption was rebutted, but cite to no authority to support this proposition.
We conclude that the district court did not err in considering the entirety of father’s
testimony—the only evidence offered by parents—in determining whether parents rebutted
the statutory presumption of pa lpable unfitness. Accordingly, the district court did not
abuse its discretion by terminating parents’ parental rights to the child.
Affirmed.