In re the Matter of the Welfare of the Child of: S. J. K. and D. J. L., Jr., 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This opinion will be unpublished and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
A19-1723

In re the Matter of the Welfare of the Child of:
S. J. K. and D. J. L., Jr., Parents.

Filed March 30, 2020
Reversed and remanded
Hooten, Judge

Big Stone County District Court
File No. 06-JV-19-110

Jeremy Blackwelder, Holmstrom & Kvam, PLLP, Granite Falls, Minnesota (for appellant,
D.J.L., Jr.)

Krystal M. Lynne, Stermer & Sellner, Chtd., Montevideo, Minnesota (for respondent
S.J.K.)

Joseph P. Glasrud, Big Stone County Attorney, Ortonville, Minnesota (for county)

Susan Marsolek, Ortonville, Minnesota (guardian ad litem)

Considered and decided by Reilly, Presiding Judge; Rodenberg, 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. Because the
record does not support the district court’s finding that the county made reasonable efforts
to reunite appellant-father with his child, we reverse and remand for further proceedings.

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FACTS
Appellant-father, D.J.L., Jr., challenges the termination of his parental right s to his
child, B.D.L., born in 2016. Prior to the child protection case, the child’s mother was
granted an order for protection (OFP) against father on behalf of he rself and the child in
May 2018, which was effective for two years. Father was ordered not to have contact with
mother or the child, except for electronic communication with mother for the sole purpose
of discussing child-related matters.
In September 2018, Big Stone County Family Services (the county) filed a child-in-
need-of-protection (CHIPS) petition on behalf of the child. The petition stated that the
county had received a report from law enforcement that the child was living in a home
containing methamphetamine and where the sale of meth amphetamine was taking place.
At the time, the child was living periodically with mother and the remainder of the time
with his maternal gra ndfather. Mother admitted to the county that she occasionally used
methamphetamine. She also told the county that father was physically abusive towards her
and that during one incident, the child was pushed to the ground by father. Mother
indicated that, even after the issuance of the OFP, father had visits with the child ev ery
other week at a local park during the summer under the supervision of the child’s maternal
grandfather, but that she had no face -to-face contact with father. Father was not charged
with violating the OFP for these visits.
Later in September 2018, f ather was charged with first-degree burglary , among
other crimes. On October 3, 2018, father was arrested for violating the OFP by having
contact with mother. Father remained in jail for over three months.

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While father was incarcerated, the county’s soc ial work supervisor met with father
to inform him that the child had been placed in foster care. Father agreed to participate in
DNA testing to establish paternity and signed authorizations for the county. This was the
only time father met with any representative from the county.
Over the course of the next several months, the county sent father three letters while
he was in jail. The first letter notified father that he was ordered to participate in DNA
testing and informed him that he would receive information about providing a DNA
sample. Father participated in DNA testing. The second letter asked father to complete a
relative search form. Father completed the form and returned it by mail. In the form, h e
indicated that he believed the best place for the child was with the c urrent foster care
placement. The third letter informed father that the DNA test results showed th at he was
the child’s father. The letter also stated, “At this time, the agency is limited in the services
it can provide to you, due to your on-going criminal matters. We will continue to monitor
the status of your criminal case and if you are released from jail, please contact me to begin
services in this case.” These three letters were the only additional contact the cou nty had
with father. The county never prepared a case plan for father or offered him any services.
The county never asked the district court to relieve it of its duty to ensure reasonable efforts
were put forth towards rehabilitation and reunification (Minn. Stat. § 260.012(a)(1), (2)
(2018)) or to make a finding that reasonable efforts would be futile (Minn. Stat.
§ 260.012(a)(7) (2018)).
Father was released from jail in December 2018. At the end of February 2019, he
was convicted of the first-degree burglary charge and sentenced to 39 months in prison,

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stayed for 10 years. The next month, on March 6, 2019, he violated the terms of his
probation and was held in jail until March 18, 2019. On April 16, 2019, father was arrested
for trying to break into an apartment. Father was incarcerated, and in May 2019, he was
transferred to prison to serve his 39 -month sentence. The district court found that, with
good behavior, father could be released from prison in early 2021.
On May 22, 2019, the county pet itioned to terminate father’s parental rights. 1 Just
before trial, t he county filed an amended termination-of-parental-rights ( TPR) petition,
which alleged that father abandoned his child under Minn. Stat. § 260C.301, subd. 1(b)(1)
(2018), he refused or n eglected to comply with his parental duties under Minn. Stat.
§ 260C.301, subd. 1(b)(2) (2018), reasonable efforts failed to correct the conditions leading
to the child’s out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5) (2018),
the child experienced egregious harm under Minn. Stat. § 260C.301, subd. 1(b)(6) (2018),
and the child was neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8)
(2018).
The district court did not appoint an attorney to represent father until June 2019.
The TPR trial took place in September 2019.
Following trial, the district court term inated father’s parental rights. The district
court concluded that the county made reasonable efforts to reunify the family and found
that: (1) reasonable eff orts failed to correct the conditions that led to out -of-home

1 Mother voluntarily terminated her parental rights.

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placement, (2) father had abandoned the child, and (3) the child was neglected and in foster
care.2
Father appealed the termination of his parental rights. The county did not respond.
D E C I S I O N
We review a district court’s TPR order for an abuse of discretion. In re Welfare of
Child of R.D.L., 853 N.W.2d 127, 136 –37 (Minn. 2014). We review whether the district
court’s factual findings are supported by substantial evidence and whether those findings
are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).
Counties are required to make reasonable efforts at reunification before the district
court can terminate a parent’s rights. 3 Minn. Stat. § 260.012(a). “We affirm the district
court’s termination of parental rights when at least one statutory ground for termination is
supported by clear and convincing evidence and termination is in the best intere sts 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).
“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

2 The district court found that the statutory ground for egregious harm was not met.
3 Only under limited circumstances may a district court relieve a county from this
requirement by a determination that reasonable efforts are not required. Circumstances
include “the parent has subjected a child to egregious harm” or the parent’s rights to another
child have been involuntarily terminated. Minn. Stat. § 260.012(a). The district court may
make this determination upon petition by the county before permanency proceedings
commence. Minn. Stat. § 260.012(b) (2018) . No such determination of futility or
egregious harm was made by the district court.

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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).
Counties are also statutorily required to prepare a case 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 Children of A.R.B., 906 N.W.2d 894 , 897 (Minn. App. 2018)
(alteration in original) (quoting Minn. Stat. § 260C.219(a)(2)(i) (2016)). The case plan
must be “a written document,” prepared “jointly with the parent or par ents 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 M inn. Stat. § 260C.212, subd.
(1)(b)(1), 3(c)). The plan must describe “the specific reasons for the placement of the child
in foster care, and . . . a description of the problems or conditions in the home of the parent
or parents which necessitated remova l of the child from home and the changes the parent
or parents must make for the child to safely return home.” Minn. Stat. § 260C.212, subd.
1(c)(2) (2018).
The county was statutorily mandated to provide father with a case plan, A.R.B., 906
N.W.2d at 898, but the county failed to do so . Within 30 days of the child’s out -of-home
placement, the county was required to jointly create the case plan with father. See Minn.
Stat. § 260C.212, subd. 1(a), (b) (2018) (requiring the social services agency to prepare,
within 30 days of an out-of-home placement, a case plan jointly with the parent). The

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county never discussed creating a case plan with father and did not discuss with father what
changes he would need to make for reunification to be possible.
Not only did the county fail to prepare a case plan for father, the county had very
limited contact with father. The entirety of the county’s contact with father includes one
meeting with a social worker when the child was first removed from the home and the three
letters that were sent to father while he was in jail. The county made no other efforts to
contact father.
In spite of these findings made by the district court, the district court found that the
county made reasonable efforts to reunify father with his child. The district court noted (in
a separate section of its termination order ) that the county never prepared a case plan for
father, but did not discuss the lack of a case plan when addressing whether the county’s
efforts were reasonable.
The district court characterized the county’s lack of contact as father’s fault. But
this finding contradicts what the child protection statutes require —that the county must
make reasonable efforts to reunify the family . The burden is on the county; it does not
shift to father because his incarceration makes it more difficult for the county to contact
him. The district court’s findings are further undermined because father complied with the
county’s requests despite the minimal contact from the county. In the first two letters sent
to father, the county requested that he participate in DNA testing and com plete a relative
search form. Father complied with both of these requests. The third letter sent by the
county then informed father that the county would not provide him with any services while
he was incarcerated.

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We conclude that the record here does not support the district court’s finding that
the county provided reasonable efforts to reunify father with his chi ld. The county failed
to jointly prepare a case plan for father and made minimal efforts in contacting him. The
county essentially refused to provide father with any services. Therefore, the record lacks
any evidence to support the district court’s finding that the county made reasonable efforts
to reunite father with his child.4
We are further concerned wi th the district court’s determination that a statutory
basis for termination exists because father was not represented by counsel until a few
months before the TPR trial. Parents have a right to be represented by counsel in child
protection proceedings. Minn. Stat. § 260C.163, subd. 3 (a) (2018). District courts are
required to appoint counsel to represent parents if a parent cannot afford it and the district
court “feels that such an appointment is appropriate.” Minn. Stat. § 260C.163, subd. 3(c)
(2018); see also In re Welfare of Child of A.M.C., 920 N.W.2d 648, 659 (Minn. App. 2018)
(confirming the statutory requirement for appointment of counsel). In this case, father did
not have counsel for nine months during the child protection case before the county
petitioned to terminate his rights. The trial took place three months after he was appointed
counsel. Had an attorney represented father, counsel presumably would have advocated

4 While the district court made other findings in terminating father’s parental rights,
reasonable efforts of the county is a threshold issue relative to the grounds for termination.

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for the creation of a case plan and a determination of what services could be provided to
father while incarcerated.
In making its findings, the district court relied heavily on In re Welfare of Children
of R.W. for support. 678 N.W.2d 49, 56 (Minn. 2004). In that case, R.W.’s parental rights
were terminated after he failed to respond to the CHIPS petition and had “minimal interest”
in reunification with his children. Id. R.W. was incarcerated for the entire child protection
case and did not have a prior relationship with his children. Id. The supreme court noted
that “nothing in state law required the county to facilitate contact between [R.W.] and the
children to assist [R.W.] in establishing a relationship with the children.” Id.
The record reveals that the case before us is distinguishable from R.W. Importantly,
an OFP prohibited father from contacting the child. Despite this, and with mother’s
knowledge, father had short , supervised visits with th e child at a park prior to his
incarceration. Before the OFP was issued, father lived with mother and the child until the
child was a year and a half old. Unlike the situation in R.W., father had a relationship with
the child and showed much more than “minimal interest” in his child. See id. Father also
expressed his opinion that the child was being well taken care of while he was incarcerated
in the child’s current foster placement with relatives.
Father claims that the district court considered his failure to contact the child while
he was incarcerated as evidence of a lack of re lationship with the child. But, as father
argued, had father contacted the child, he would have directly violated the OFP and would
be subject to further criminal proceedin gs. The district court did not seem to appreciate

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this predicament, finding that father “did not establish an excuse for failing to take e fforts
to contact his child.”
For these reasons, we hold that the district court’s finding that the county provided
reasonable efforts to reunify father with his child is unsupported by the record. We
therefore reverse and remand for proceedings consistent with this opinion . The district
court shall reopen the CHIPS file, if necessary, for the provision of reasonable services to
father and further handling. Because we reverse and remand based on the county’s failure
to provide reasonable efforts, we need not address father’s additional arguments.
Reversed and remanded.