In re the Matter of the Welfare of the Child of: L. M. B. and J. S. L.

This opinion will be unpublished and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
A19-1197

In re the Matter of the Welfare of the Child of:
L. M. B. and J. S. L.

Filed December 23, 2019
Affirmed
Cleary, Chief Judge

Anoka County District Court
File No. 02-JV-19-241

Jason Steck, Edina, Minnesota (for appellant L.M.B.)

Anthony C. Palumbo, Anoka County Attorney, Kathryn M. Timm, Assistant County
Attorney, Anoka, Minnesota (for respondent Anoka County Human Services)

Judi Albrecht, Ramsey, Minnesota (guardian ad litem)

Considered and decided by Hooten, Pr esiding Judge; Cleary, Chief Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from the termination of her pa rental rights, appellant-mother challenges
the district court’s finding that her substa nce-abuse issues persisted at the time of
termination, and she argues that the district court erroneously shifted the burden onto her
to prove her sobriety. We affirm.

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FACTS
This appeal concerns V.D.L., a child born in 2010 to appellant-mother L.M.B. and
father J.S.L. In the past, both parents st ruggled with methamphetamine use and domestic
violence, and they exposed the ch ild to that behavior. Mother is currently 41 years old.
Her substance-abuse issues have persisted since her teenage years. She has participated in
over a dozen treatment programs.
V.D.L. is mother’s fourth and youngest child, and her only child with father.
Mother’s involvement w ith child protection predates V.D. L. Since 2002, she has been
involved with social services to address substance abuse, criminal behavior, and domestic-
violence issues. A 2002 case was opened after one of her two eldest children tested positive
for methamphetamine at birth. In 2006, after cycles of relapse, recovery, and reunification,
she voluntarily terminated he r rights to her two eldest ch ildren. In 2008, during her
pregnancy with her third child , she tested positiv e for methamphetamine, and this led to
her civil commitment for chemical dependency. In 2012, she consented to the adoption of
that child.
In September 2011, one-year old V.D.L. was placed outside the home because of
the parents’ domestic-violence issues and me thamphetamine use. The county petitioned
to terminate the parents’ rights to V.D.L., but father sought treatment and was deemed a
viable parent. The child was placed with hi m in August 2012. The termination case was
converted into a child-in-need-of-protection-or-services case. In 2013, mother voluntarily
transferred physical custody of V.D.L. to fa ther. Following the transfer, the parents did
not have contact with social services until June 2016.

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Father relapsed in December 2015. In Ju ne 2016, mother went to the emergency
room. She tested positive for methamphetamine. She reported that father was abusive and
that she was afraid for V.D.L.’s safety. Two months later, following additional reports of
domestic violence and drug use by the parents, V.D.L. was placed outside the home for a
second time. The county again petitioned to te rminate parental rights. Mother failed to
comply with her case plan, continued to us e methamphetamine, and was sentenced to a
prison term for a methamphetamine offense. But father accessed services and complied
with his case plan, and the termination petiti on was ultimately denied. Father regained
custody, and the case was closed in early 20 18. Soon after, father again relapsed. In
February 2019, the county took V.D.L. out of the home for a third time.
Mother was imprisoned between Nove mber 2016 and November 2018 for
methamphetamine possession. After her releas e in November 2018, she was placed on
intensive supervised release until November 2019, and she will be on parole until 2022.
After her release, mother co mpleted inpatient treatment at RiverPlace. Her discharge
report from RiverPlace indicated that she remained “at high risk to return to use . . . as
evidenced by her limited sober support network, lack of structure and accountability.” She
transitioned from RiverPlace to outpatient treatment at NuWay, and while attending
outpatient treatment, she resided at Day by Day sober housing. She successfully completed
outpatient treatment, and her addiction counselor deemed her “a low risk for return to use”
based upon her sober support network, atte ndance at support mee tings, and developed
coping skills. While staying at Day by Day, mother had week ly supervised visits with
V.D.L.

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In February 2019, the county again petitioned to terminate the parents’ rights. The
county asserted two statutory grounds for termination: parental neglect, under Minn. Stat.
§ 260C.301, subd. 1(b)(2) (201 8), and palpable unfitness, u nder Minn. Stat. § 260C.301,
subd. 1(b)(4) (2018).
In April 2019, the county filed mother’s out-of-home placement plan. The county
expected mother to, among other things, demons trate her sobriety “in a less structured
community setting.” She was expected to follow her inte nsive supervised release
requirements and “demonstrate relapse prev ention skills” and the “ability to sustain
sobriety.”
In June 2019, the district court held a trial on the termination petition. Multiple
social workers testified about mother’s exte nsive child-protection history, including her
methamphetamine use and multiple failed treatm ent attempts. Lauren Cains, a social
worker, testified that she set up a case plan with mother with th e goal that mother
demonstrate sobriety in an unstructured se tting and demonstrate the ability to assess and
meet the child’s needs. Cain s did not believe that mother had met the goals, though she
acknowledged that mother had worked on th em, complied with her case plan, and was
doing well in sober living. Ca ins did not feel that reunific ation with mother was proper
because she had not demonstrat ed the ability to sustain su ccess outside of a controlled
environment.
Dr. James Gilbertson testified regarding his psychological assessments of father. In
discussing father’s addiction, Dr. Gilbertson testified, on the topic of sustained sobriety,
that time in “restricted environments,” such as prison, is not considered “recovery time,”

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and a person must be in “open society” fa cing everyday stressors and difficulties for the
period of sobriety to count as recovery time.
A mental-health practitioner testified that the child has post- traumatic stress
disorder (PTSD), and another mental-health practitioner simila rly testified that the child
has a trauma related disorder, a result of experiencing domestic violence, the parents’ drug
use, and having multiple caretakers.
The guardian ad litem (GAL) testified that it was in the child’s best interests for the
parents’ rights to be terminat ed. The GAL testified that mo ther was “doing really well,”
she was sober, employed, and seeking housing. She believed mother had been sober for
32 months. The GAL had no concerns while mother was sober, but was unsure if mother
would maintain her sobriety outside of a structured setting. The GAL believed that mother
would need one to three years of sobriety in the community, without structure, before a
determination could be made on the stability of her sobriety.
A corrections agent assigned to supervise mother testified that mother’s probability
of relapse was high, and if she violated her release conditions, she would go back to prison.
Mother testified that she had been sober for 32 months and was never told that she
was failing to follow her case plan. At the time of trial, she was employed and residing at
Day by Day. The child could not stay with her there, but she was seeking alternative
housing. She acknowledged having signifi cant mental-health diag noses for attention-
deficit disorder, anxiety, depression, obsessive-compulsive disorder, and PTSD. She had
not had physical custodial rights to the child since the child was removed from her care at

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the age of one. She acknowledg ed that she had not been pres ent for V.D.L. in years past
because she was under the influence of controlled substances.
In July 2019, the district court filed an order terminating the parents’ rights to V.D.L.
The court found that the county proved both of the alleged gr ounds for termination. The
court also found that termination was in the child’s best interests. Mother appeals.
D E C I S I O N
A district court may termin ate parental rights if ther e is clear and convincing
evidence establishing at least one statutory ground for termination and termination is in the
child’s best interests. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).
“[T]he petitioner bears the burden of overcoming the presumption that a natural parent is
a fit and suitable person to be entrusted with the care of the child.” In re Welfare of A.J.C.,
556 N.W.2d 616, 619- 20 (Minn. App. 1996) (quotation omitted), review denied (Minn.
Mar. 18, 1997). We review the district court’s findings of fact for clear error. In re Welfare
of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). “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). Both the district court’s determination that its findings
show the existence of a statutory basis to terminate parental rights and its ultimate decision
regarding whether to terminate parental rights are reviewed for an abuse of discretion. In
re Welfare of Children of J.R.B. , 805 N.W.2d 895, 900-01 (Minn. App. 2011), review
denied (Minn. Jan. 6, 2012).

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In terminating mother’s parental rights, the district court relied on section 260C.301,
subdivision 1(b)(2), which permits a district court to terminate parental rights if it 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 ch ild relationship, including but
not limited to providing the child with n ecessary 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 conditi ons that formed the basis of
the petition or reasonable efforts would be futile and therefore
unreasonable.

The district court also relied on subdivisio n 1(b)(4), which permits a district court
to terminate parental rights if it finds
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.

Under both grounds for termination, a dist rict court must find that the problematic
condition affecting the parent-and-child relations hip exists at the time of termination and
will continue for a prolonged, indefinite period. T.R., 750 N.W.2d at 661; In re Welfare of
Child of J.K.T., 814 N.W.2d 76, 90 (Minn. App. 2012); see also A.J.C., 556 N.W.2d at 622
(stating that evidence must relate to conditions in existence at the time of hearing).
In concluding that both statut ory grounds for termination were proven, the district
court relied upon mother’s substance abuse and its effects on her mental health and ability

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to parent. The court found that mother’s substance abuse “led to a lack of impulse control
and coping skills,” abusive relationships, and incarceration. The court found that mother’s
substance abuse and mental-health issues affected her relati onship with V.D.L. Mother
“parented while high,” exposed V.D.L. to domestic abuse, was not present for V.D.L. due
to incarceration, and caused V.D.L. to experience trauma. The court also believed that the
problematic conditions existed at the time of termination and would continue into the
future. The court noted mother’s recent success in recovery, but found that she had “only
maintained sobriety while in a controlled environment” and had “a long history of relapse
after successfully completing treatment progr ams.” The district court’s findings are
supported by the record. Therefore, the district court did not abuse its discretion in ruling
that statutory bases for term inating parental rights existe d on the grounds of repeated
neglect and palpable unfitness.
Mother challenges the district court’s findi ng that she failed to establish sustained
sobriety because her sobriety occurred in a “controlled environment.” She argues that the
district court “relied entirely on the testimony of Dr. Gilbertson” in making that finding,
and erred in that regard because Dr. Gilbertson’s testimony concerned father. We disagree
with mother’s contention that the district court relied exclusively on Dr. Gilbertson. Other
witnesses, for example Cains and the GAL, testified about concerns over mother’s failure
to demonstrate sobriety in a less-structur ed setting. Further, although Dr. Gilbertson
primarily testified about father, his testimony regarding sustained sobriety, that he did not
“count the time in restricted environments,” was broadly applicable, and could reasonably
be applied to mother’s situation.

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Mother argues that, even if Dr. Gilbertson’s testimony was properly applied to her,
nothing in the record suggests that her time at Day by Day, under supervised-release
conditions, qualifies as a “controlled environment.” While the district court did not define
a “controlled environment,” its reasoning is sound and clearly discernable. Mother failed
to demonstrate sobriety in a less structured setting, as required by her case plan. While she
was sober for 32 months at the time of trial, she had only been out of prison seven months
and out of outpatient treatment one month, and she continued to reside at a sober living
facility, which could not accommodate overnight visits with the child.
Mother argues that “any parent subject to a case plan containing such conditions
could never establish stable sobr iety sufficiently to avoid term ination of parental rights.”
This argument ignores the facts of this case . While we acknowledg e the significance of
mother’s recent sobriety, and commend her for he r efforts, we cannot ignore her striking
history of treatment and relaps e. The district court had g ood reason to question whether
mother was able to assume her role as V.D.L.’s parent. The child had been in out-of-home
placement for over 900 days at the time of trial, and the need for permanency was high, so
mother had limited time to establish her sobriety outside of a treatment setting. At the time
of trial, she had yet to obtain a residence that could accommodate overnight visitation with
the child, and numerous witnesses questioned whether she could sustain her sobriety under
more stressful circumstances. Evidence in the record, be yond the historical evidence,
indicated that mother was at significant risk of relapse.
Mother argues that the district court impermissibly relied on her history of substance
abuse to terminate her parental rights, and thereby shifted the burden onto her to prove her

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sobriety. Mother is correct that evidence supporting termination must concern the
conditions that exist at the time of trial. In re Welfare of P.R.L. , 622 N.W.2d 538, 543
(Minn. 2001). However, this does not deprive a district court of the ability to assess a
parent’s historical conduct. See In re Welfare of S.Z. , 547 N.W.2d 886, 893-94 (Minn.
1996) (reviewing parent’s mental-health and chemical-abuse history); see also Minn. Stat.
§ 260C.301, subd. 1(b)(4) (allowi ng district court to consid er “a pattern of specific
conduct” in termination proceedings). We reject mother’s argument that the district court
shifted the burden of proof onto her. Th e county submitted a s ubstantial amount of
historical evidence indicating a likelihood of relapse. Though this may have obligated
mother to respond if she wished to counter the evidence, it did not shift the burden of proof.
The record supports both the district cour t’s findings and its ultim ate termination under
both statutory grounds. While termination is a harsh result given mother’s recent success,
the district court found that it was in the child’s best interests. On this record, we agree.
Affirmed.