A19-1057 A19-1062

This opinion will be unpublished and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
A19-1052
A19-1057
A19-1062

In the Matter of the Welfare of the Children of:
J. B. O., Parent (A19-1052),

In the Matter of the Welfare of the Children of:
J. B. O., Father (A19-1057, A19-1062)

Filed December 30, 2019
Reversed
Rodenberg, Judge

Hennepin County District Court
File No. 27-JV-17-5140

Mary Moriarty, Fourth Distri ct Public Defender, Paul J. Maravigli, Assistant Public
Defender, Minneapolis, Minnesota (for appellant-father J.B.O.)

Mary Moriarty, Fourth District Public De fender, David W. Merchant, Assistant Public
Defender, Minneapolis, Minnesota (for appellant-child J.O.)

Mary Moriarty, Fourth District Public De fender, Kellie M. Charles, Assistant Public
Defender, Minneapolis, Minnesota (for appellant-child E.O. and appellant-mother V.O.)

Michael O. Freeman, Hennepin County Attorney, Britta K. Ni cholson, Assistant County
Attorney (for respondent Hennepin County Human Services and Public Health
Department)

Rebecca Shlafer, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In these consolidated appeals, appellant s J.B.O. (father), V.O. (mother), and their
children E.O., age 17 and J.O., age 15, appeal from the district court’s order terminating
father’s rights to E.O. and J.O. Father and E.O. argue that the district court’s order should
be reversed because the district court ne ver relieved Hennepin County Department of
Human Services and Health (the county) of the obligation to make reasonable efforts to
reunify the family. Appellants all argue that the record does not support the district court’s
determination that termination is in each child ’s best interests. Because the record does
not support the district court’s best-interests determination, we reverse.
FACTS
Father and mother are the pa rents of E.O., born in 2002, and J.O., born in 2004. On
October 26, 2017, child-protection authorities received a report alleging that then-15-year-
old E.O. had been sexually abused for approx imately seven years by father. Assessment
and investigation revealed the sexual-abuse report to be true. Father was charged with one
count of first-degree criminal sexual conduct.
On November 1, 2017, the county filed a petition for the termination of father’s
parental rights to E.O. and J.O. on the basi s of palpable unfitness and his having caused
egregious harm to a child. When the emergency protective care (EPC) hearing was held
before a district court judge, father was in custody at the Hennepin County Jail. He was
not present for the EPC hearing. The county requested an admit/deny hearing in ten days,
“in order to have [father] . . . present for the further hearing.” The county indicated that it

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would “be asking to be relieved of reasonable e fforts, but . . . did not want to make that
request at this time.”
The district court found that the petiti on to terminate father’s parental rights
“establishes a prima facie showi ng that a juvenile protection ma tter exists,” and it issued
an order for protective care regarding J.O., and an order for E.O. to be placed in foster care
under the county’s care and custody. The di strict court did not relieve the county of
reasonable efforts to reunify. Using a form or der, the district court left blank all of the
portions of the form order relating to reasonable efforts. The county did not request to be
relieved of reasonable efforts at the next hearing or at any other hearing.
Despite having made no request to be relieved of the obligation to make reasonable
efforts to reunify, and despite the district c ourt not having relieved the county of that
obligation, a child protection social worker (CPSW) wrote in a prehearing report dated
January 15, 2019, that “[t]he [county] continues to be relie ved of reasonable efforts with
regard to [father].” In another prehearing report dated April 5, 2019, the CPSW wrote that
“[d]ue to the allegations in the case, the [county is] statutorily relieved of reasonable efforts
in reunifying [father] with his children.” No pr etrial order of the district court addressed
the issue of whether the county should be relieved of reasonable efforts to reunify.
A termination of parental rights trial was held on April 10, 2019. The CPSW
testified that father was origin ally “included in the case pl an,” but that the county was
“relieved of efforts initially due to the nature of the incident .” The attorneys for father,
mother, 17-year-old E.O. and 15-year-old J.O. did not challenge this assertion, but instead

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argued that termination of father’s parental rights was not in the best interests of E.O. and
J.O.
J.O. testified that his re lationship with father was “s trong” and that terminating
father’s parental rights would make him “hea rtbroken.” He stated that termination
“wouldn’t benefit [him] in any way.”
E.O. did not testify at tria l. But, by agreement between the parties, her attorney
made a statement on E.O.’s behalf, to which there was no response or challenge by the
county. Despite being a junior in high school, E.O. attends the University of Minnesota as
a full-time college student and is “very matu re beyond her years.” Concerning E.O.’s
therapy, her attorney stated that E.O. “was where she needed to be in her treatment.” E.O.’s
attorney urged the district court to “really listen to [E.O.] and listen to what she believes is
in her best interest” and stated that E.O. “never supported a termination” and “does not
want a termination.”
Similarly, and again by ag reement of the parties, mo ther’s attorney made a
statement on mother’s behalf, stating that “her children are . . . intelligent children and [the
court] should give great weight and credibility to [E.O. and J.O.’s] wants in this case.”
Although ultimately recommending that fath er’s parental rights be terminated
because father “is not able to fully parent and provide for [E.O. and J.O.] physically,
emotionally, financially, and spiritually[,]” the GAL testified at trial that both J.O. and E.O.
are “old enough to make their own decisions regarding the type and frequency of contact
that they have with their father, both now and in the future.”

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The district court terminated father’s pa rental rights to both E.O. and J.O., finding
that statutory grounds for termination existe d under Minn. Stat. § 260C.301 (2018), that
the county was relieved of reasonable reunification efforts on November 1, 2017, and that
the termination of father’s right s was in the best interests of E.O. and J.O. The district
court denied a motion for a new trial.
These consolidated appeals followed.
D E C I S I O N
On appeal from an order terminating parent al rights, we consider whether the district
court’s findings address the statutory termin ation requirements and whether the findings
are supported by substantial evidence. In re Welfare of Child of J.K.T. , 814 N.W.2d 76,
87 (Minn. App. 2012). Review ing courts “give considerable deference to the district
court’s decision to terminate parental right s[]” and will “affirm the district court’s
termination of parental rights when at leas t one statutory ground for termination is
supported by clear and convincing evidence and te rmination is in the best interests of the
child, provided that 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) (citations omitted).
Father and E.O. argue that the district c ourt erred when it found as a fact after trial
that it had relieved the county of the obligation to make reunification efforts to reunify the
family. Appellants argue that this error requires reversal. The county argues in reply that
this challenge is forfeited and unavailable on appeal because it was not raised to the district
court and no party requested reasonable reunification efforts.

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Minn. Stat. § 260.012(a) (2018) requires the county to make reasonable
reunification efforts to both prevent removal and “reunite [a removed child] with the child’s
family at the earliest possible time.” Reasonable efforts are “services that go beyond mere
matters of form so as to indi cate real, genuine assistance.” In re Welfare of Children of
S.W., 727 N.W.2d 144, 150 (Minn. App. 2007) (quotation omitted), review denied (Minn.
Mar. 28, 2007). However, such reasonable efforts to reunify may be bypassed “ upon a
determination by the court that a petition has been filed stating a prima facie case that . . .
the parent has subjected a child to egregious harm.” Minn. Stat. § 260.012(a)(1) (emphasis
added). See Minn. R. Juv. Prot. P. 42.08, subd. 1(e)(1) (stating that “reasonable efforts . . .
for rehabilitation and reunification are always required except upon notice by the county
attorney and a determination by the court . . . that a petition has been filed stating a prima
facie case that at least one of the circumstances under Minnesota Statutes, section 260.012,
paragraph (a), exists”).
The district court’s finding that it reliev ed the county of the reasonable-efforts
obligation is erroneous. There is no record support for the finding that the county was
relieved of the reasonable-efforts obligation by the district court.
We reject as flawed the county’s argument that the appellants forfeited this issue
because they did not ask the district cour t to order that the county make reasonable
reunification efforts. Nothi ng in section 260.012(a)(1) ob ligates a parent to request
reunification efforts. The statute is clear and unambiguous that the county must make
reasonable reunification efforts unless and until the district court re lieves the county of
reasonable efforts. Minn. Stat. § 260.012(a)(1 ). Only the district court may relieve the

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county of the reasonable-efforts obligation, and inaction by the parents or children cannot
relieve the county of this statutory obligation.
The district court never expressly relieve d the county of reas onable efforts to
reunify, resulting in error in the terminati on proceedings. But we decline to address
whether this error was harmless and, if it was not harmless, wh at remedy would be
appropriate on appeal. We leav e these questions for another day, because we reverse the
termination of father’s parental rights for other reasons, as discussed below.
The record does not support the district cour t’s finding that termination of father’s
parental rights is in the best interests of E.O. or J.O.

Father, mother, E.O., and J.O. each argue that the best-interests factors weigh
against termination and that the district court abused its discretion by finding otherwise.
In a termination proceeding, we consider whether termination of parental rights is
in the children’s bests interests because the children “are the paramount consideration, and
conflicts between the rights of the child and ri ghts of the parents are resolved in favor of
the child.” In re Welfare of Children of J.R.B., 805 N.W.2d 895, 902 (Minn. App. 2011),
review denied (Minn. Jan. 17, 2012). A child’s best interests may preclude termination,
even if a statutory basis for termination exists. In re Welfare of Child of D.L.D. , 771
N.W.2d 538, 545 (Minn. App. 2009).
A proper best-interests analysis requires the district court to balance three factors:
“(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest
in preserving the parent-child relationship; a nd (3) any competing inte rest of the child.”
J.R.B., 805 N.W.2d at 905 (quotation omitted). Competing interests of the child “include

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a stable environment, health considerations, and the child’s preferences.” In re Welfare of
M.A.H., 839 N.W.2d 730, 744 (Minn. App. 2013). We review a best-interests
determination for an abuse of discretion. J.R.B., 805 N.W.2d at 905.
Here, the district court found that E.O. an d J.O. have an interest in preserving the
parent-child relationship with father. The record amply supports this finding.
The district court next found that father has an interest in preserving the parent-child
relationship with each of his children. Again, the record supports this finding.
Despite these record-supported findings, the district court found that the competing
interests of the children weighed against preservation of father’s parental rights, and found
that this factor outweighs the first two factor s. The district court found that, considering
“the children’s ages and stated preferences,” it viewed the “weight and persuasiveness of
[E.O.’s and J.O.]’s statements as neutral.” It reasoned that J.O. may not “understand the
extent of the abuse allegations,” and that E.O. may “feel[] responsible and blame[]
themselves for the disruption their disclosure caused their family.”
As previously noted, compe ting interests in this cont ext include stability, health
considerations, and the child’s preferences. M.A.H., 839 N.W.2d at 744. The district court
determined that father “by his own actions made himself unavailable to parent[,]” that
father’s actions were egregiou s, and that “based [on] the children’s needs, history, and
vulnerability,” father is not a stable, “safe[,] or appropriate” caregiver. The district court
also gave substantial weight to the testimony of both the CPSW and the GAL that father
was unable to provide stability to E.O. and J.O.

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This case is extraordinary. These children are, by all a ccounts, doing well. They
are bright and accomplished. E.O. is successfully attending college at the age of 17 years.
J.O. is also a successful student. Both children have received appropriate therapy for what
has happened to them and to the family as a consequence of father’s crimes, and each
clearly expressed a reasoned desi re to retain a legal relationship with father. Although
father’s criminal conduct harmed both children, those children are mentally and physically
healthy and both currently live in a safe and stable environment with mother, who ensures
that the family’s financial and other needs are met. The children are receiving all of their
medical, dental, educational, an d other needs while in their mother’s care. The record
contains nothing to suggest that mother cove red up or was complicit in father’s abuse of
E.O. or that she pressured eith er child to posit a desire that father’s parental rights not be
terminated. The county made no effort to terminate mother’s rights and did not dispute
that mother is providing both children with excellent care. As the GAL expressly
recognized, each child is mature and able to make decisions about what contact each will
have with father.
Because father is in prison, his conviction has been affirmed by this court on appeal,1
and his projected release from prison is not until 2026, he poses no safety threat to either
child. Both children in tend to maintain a relationship w ith their father, and they will be
free to do that as adults regardless of whether father’s rights are terminated. Simply stated,
the record does not support the district court’ s finding that E.O.’s and J.O.’s stability and

1 To avoid disclosure of the family name, we omit citation to th e unpublished opinion
affirming father’s appeal. Minn. R. Juv. Prot. P. 8.08, subd. 2.

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health considerations in the best-interests an alysis weigh in favor of terminating father’s
parental rights, much less that those cons iderations outweigh th e clearly expressed
preference of the children that father’s rights not be terminated.
In re Welfare of M.P. supports preserving father’s parental rights. 542 N.W.2d 71,
74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574
N.W.2d 717, 722-24 (Minn. 1998). In M.P., we held that the preference of a child old
enough to express such a preference must be gi ven significant weight in a best-interests
analysis in a termination-o f-parental-rights context. Id. Similarly, in Ross v. Ross , we
determined that “[t]he choice of an older te enage child is an overwhelming consideration
in determining the child’s [best interests].” 477 N.W.2d 753, 756 (Minn. App. 1991).
Here, and despite the district court’s dete rmination that J.O. did not understand the
extent of the abuse, J.O. testified that he discussed father’s crime with his therapist and that
he understood the crime father committed agains t E.O. And, although the district court
expressed a valid concern regarding E.O. and her safety, E.O. has opposed termination of
father’s parental rights since the beginning of this case and will be well over 18 years old
by the time father is released from prison. The record clearly indicates that these
exceptional children prefer that father’s parental rights remain intact. On this record, we
conclude that the district cour t clearly erred in finding that the third factor in the best-
interests analysis favored termination of father’s parental rights.
In addition to the record no t supporting the three-factor best-interests analysis of the
district court, we also observe that the dist rict court’s best-interests analysis failed to
differentiate between the individual interests of each child. See In re Welfare of Child of

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S.S.W., 767 N.W.2d 723, 731 (Minn. App. 2 009) (“[T]he district court traditionally
considers the child’s unique circumstances and individual needs.” (emphasis added)). The
district court’s order fails to adequately consider the unique circumstances and individual
needs of E.O. and J.O., and instead finds th at “[father] will not be able to care for the
children for the reasonably foreseeable future,” that it “considered the children’s ages and
stated preferences,” and that “[i] t is in the best interests of the children that. . . [father’s]
parental rights be terminated.” On this reco rd, the district court’s failure to differentiate
between the unique circumstances and individua l needs of E.O. and J.O. also supports
reversal.
Father committed horrible crimes against E. O. Those crimes permanently disrupted
the lives of both children. Mother has steppe d into the breach and cares for both of these
extraordinary children in all relevant ways. Each child ha s received appropriate therapy.
And both children and their mother believe that the best interests of each child will best be
served by preserving father’s parental rights. The government doesn’t always know what
is best for families. The power of the state should not be used to break up an otherwise-
viable family. This family is united in a preference that safeguards and protects each child.
The wishes of a mature and responsible child that a parent’s rights not be terminated must
be honored in a case where that child’s needs are fully met by the other parent.
Reversed.