In re the Matter of the Welfare of the Child of: T. T. and T. Z., Sr., 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This opinion will be unpublished and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
A19-1781

In re the Matter of the Welfare of the Child of: T. T. and T. Z., Sr., Parents.

Filed March 30, 2020
Affirmed
Florey, Judge

Blue Earth County District Court
File No. 07-JV-19-2534

Laura L. Reynolds, Reynolds Law Office, P.L.L.C., Mankato, Minnesota (for appellant
T. T.)

Steven D. Winkler, Jones Law Office, Mankato, Minnesota (for appellant T. Z.)

Patrick R. McDermott, Blue Eart h County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent County)

Kaylee Koyen, St. Peter, Minnesota (guardian ad litem)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
T.Z. (fath er) and T.T. (m other) challenge the involuntary termination of their
parental rights (TPR). Father argues that the TPR was inappropriate because mother had
sole legal and physical custody of the child during the relevant time period . Father also
argues that the district court’s findings do not support the statutory bases for TPR, nor do

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they support the conclusion that TPR is in the child’s best interests. Mother argues that res
judicata should bar the district court from including findings based on info rmation
contained in a prior, dismissed CHIPS petition. Mother also argues that the county did not
make reasonable efforts to reunite child with her and that the district court’s determinations
on the statutory gr ounds for termination were not supported b y clear and convincing
evidence. We affirm.
FACTS
T.Z. Jr. ( child) was born on July 1, 2018. Blue Earth County Human Se rvices
(BECHS) received a child -protection repo rt via a “birth match” because m other had
previously voluntarily terminated her parental rights to another child. The hospital
expressed concerns that m other and father were unprepared to bring child home because
they lacked a car seat or other baby supplies. Hospital staff also reported concerns about
father’s aggre ssive behavior, stating that he “got in the doctor’s face” when preppi ng
mother for a C -section. BECHS also received a repo rt that a urine analysis for mother
tested positive for methamphetamine, though this test was later determined to be a false
positive.
Mother and child were released from the hospital on July 4. BECHS made attempts
to speak with m other to arrange for voluntary services , but she did not return their calls.
Additionally, with one exception, mother did not attend follow-up doctor visits for the child
as recommended.

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On July 11, f ather was arrested for a probation violation for using
methamphetamine. It was reported to BECHS that father had drove with mother and child
in the car after using methamphetamine.
At a hearing on July 19, child was ordered into out-of-home placement. A trial was
held on August 21, 2018. Mother denied the Child -in-Need-of-Protective-Services
(CHIPS) petition, and the district court issued an order terminating jurisdiction over the
case and ordering the return of child to m other. On September 18, BECHS filed a new
CHIPS petition with upda ted information, alleging that m other had engaged in criminal
activity, had tested positive for chemicals, and that father had assaulted mother. The
district court granted temporary custody of child to BECHS.
On November 19, mother entered an admission to the CHIPS petition on the ground
that she had chemical-dependency issues that interfered with her ability to parent, and child
was adjudicated CHIPS. Case plans were created for both mother and father, which were
adopted by the court at a November 28 hearing. Mother requested an extension of the
permanency timeline, which the court granted, extending the timeline by 90 days.
In June 2019, BECHS filed a TPR petition recommending that mother’s and father’s
rights be termi nated pursuant to what is now Minn. Stat. § 260C.301, subd. 1(b)(2), (4),
and (5) (2018). A three -day court trial was held on August 12, September 12, and
September 24, 2019. Both mother and father invoked their fifth -amendment right not to
testify. But the court heard testimony from the BEC HS social worker, the parenting -
capacity evaluator, the Love-and-Logic class facilitator, the guardian ad litem (GAL), the

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parenting-time supervisor, a Walmart L oss Prevention officer, a member of the Le Sueur
County drug-court team, and mother’s brother and mom.
On October 15, 2019, th e district court issued its order terminating both mother ’s
and father’s parental rights for all of the statutory grounds alleg ed in the TPR petition .
Parents appeal.
D E C I S I O N
Appellate courts “affirm the district court’s [TPR] when at least one statutory
ground for termination is supported by clear and convincing evidence and termination 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) (citation omitted).
On appeal, “[c]onsiderable deference is due to the district court’s decisi on because
a district court is in a superior position to assess the credibility of witnesses.” In re Welfare
of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). Appellate courts review a district court’s
TPR order to determine whether the findings “(1) address the statutory criteria and (2) are
supported by substantial evidence. [Appellate courts] must closely inquire into the
sufficiency of the evidence to determine whether it was clear and convincing. Ultimately,
however, [appellate courts] review the factua l findings for clear error and the statutory
basis for abuse of discretion.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 87 (Minn.
App. 2012) (citations and quotation omitted). “ A finding is clearly erroneous if it is
manifestly contrary to the weight of the evidence or not reasonably supported by the

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evidence as a whole. An abuse of discretion occurs if the district court improperly applied
the law.” Id. (citation and quotation omitted).
I. Did the district court abuse its discretion by terminating father’s parental
rights?

Father argues that because he is not mar ried to m other, and the record is unclear
about whether a recognition of parentage is on file, he “did not have legal standing to
provide the actual care and support of [child].” Father did not raise this argument, nor did
he challenge that he is child’s father, at any time during the proceedings below . Because
this argument is not properly raised on appeal, it is not properly before this court . See
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Next, father asserts that the district court’s findings do not support TPR on the
statutory bases that he did not comply with the duties imposed on him as a parent and that
he is palpably unfit to parent. Minn. Stat. §260C.301, subd. 1(b)(2), (4). The district court
found that father failed to “provide a stable, con sistent, safe and sober living environment
for [c]hild” despite being “physically and financially able to do so.” The district court also
found that father was “unable, for the reasonably foreseeable future, to care appropriately
for the ongoing physical, mental, or emotional needs of . . . child.”
Father used methamphetamine shortly after the birth of child and drove under the
influence with child in the car, in violation of his probation which led to his incarceration.
After release, he was engaged in a domestic incident with mother for which he was arrested.
During his incarceration, the county social worker testified that father did not complete any
aspects of his case plan, though he did partici pate in a family -group-decision-making

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meeting by phon e. Father did complete his parenting evaluation, but the parenting
evaluator opined that father was downplaying his crimi nal actions. Father’s domestic -
violence-inventory score was 90 out of 100, which the district court noted was “concerning,
especially considering the history of dome stic abuse by father against m other, as recently
as September of 2018.” Father was able to obtain employment in prison, but his
employment was subsequently “impeded” due to disciplinary infractions. The record
reflects that the county social worker contacted father’s case manager and learned that there
was anger-management and domestic-violence programming available in prison, but father
did not complete these aspects of his plan. The case plan recommended that father remain
law-abiding, but he had several disciplinary infractions while in prison. Father did no t
complete individual therapy, obtain a parenting mentor , or complete parenting -education
classes. Father has “expressed his intentions differently to different people,” regarding his
plan to obtain independent housing, at times indicating that he may reside with mother
upon release, or possibly move to Iowa.
While we note that the district court’s findings regarding the statutory grounds for
termination are not particularly well -developed, we conclude that they are supported by
clear and convincing evide nce in the record. Additionally, the district court was entitled
to, and did, draw a negative inference from father’s refusal to testify. The district court did
not abuse its discretion by concluding that termination pursuant to Minn. Stat. § 260C.301,
subd. 1(b)(2), is supported by clear and convincing evidence.
Finally, father argues that the district court’s determination that TPR is in the child’s
best interests is not supported by the record. “[D]etermination of a child’s best interests ‘is

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generally not susceptible to an appellate court’s global review of a record,’ and . . . ‘an
appellate court’s combing through the record to determine best intere sts is inappropriate
because it involves credibility determinations.’” In re Welfare of Child of D.L.D ., 771
N.W.2d 538, 546 (Minn. App. 2009) (quoting In re Tanghe, 672 N.W.2d 623, 625 (Minn.
App. 2003)).
Here, the district court concluded that permanency was in child’s best interests and
that father was unable to provide the “stability, safety, and attention” child needs in the
reasonably foreseeable future. The district court noted that father failed to take advantage
of the services offered, which ar e necessary to ensure the safety and well -being of child.
Father contends that he has been involved in child’s life both before and during his
incarceration. But the record reflects that to the extent that father was involved with child,
it was for a very short period of time around his birth, during which father engaged in risky
and criminal behaviors. The BECHS social worker testified that father did not complete
any of the aspects of his case plan , and the GAL testified that TPR is in the child’s best
interests. Child has spent all but two weeks of his life in foster care and has a strong need
for a stable home. The district court did not abuse its discretion by concluding that the best
interests of the child support termination of father’s parental rights.
Because at least one statutory ground for termination is supported by clear and
convincing evidence, and because the best interests of child weigh in favor of termination,
we conclude that the district court did not abuse its discretion by involuntarily terminating
father’s parental rights.

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II. Did the district court abuse its discretion by terminating mother’s parental
rights?

First, mother asserts that res judicata bars the district court from including findings
in the TPR order based upon information that was contained in a prior, dismissed CHIPS
action. “Whether res judicata is available in a particular case is a question reviewed de
novo.” Sanvik v. Sanvi k, 850 N.W. 2d 732, 737 (Minn. App. 2014). For res judicata to
apply, the following four elements must be met: “(1) the earlier claim involved the same
set of factual circumstances; (2) the earlier claim involved the same parties or their privies;
(3) there was a final judgment on the merits; [and] (4) the estopped party had a full and fair
opportunity to litigate the matter.” Id. (quotation omitted). However, even if all four
elements are met, the decision to apply res judicata “is left to the trial court’s discre tion.”
Dixon v. Depositors Ins. Co., 619 N.W.2d 752, 755 (Minn. App. 2000).
While mother claims that all four elements are met, without the dismissed CHIPS
petition and transcript as part of the record, it is difficult to ascertain whether the dismissal
amounts to a final judgment on the merits. Additionally, the TPR proceeding, while
involving some of the same factual circumstances, relied on new information alleged by
the county in its second CHIPS petition. Furthermore, applying res ju dicata to a ma tter
such as this would undercut the ability of the district court to protect the “paramount nature
of a child’s best interests” because it would remove all of the facts and circumstances
alleged prior to the TPR from consideration of mother’s parenting as a whole. See D.L.D.,
771 N.W.2d at 547. We conclude that even if all of the elements of res judicata were
satisfied, the application of the doctrine was not appropriate in this case.

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Second, mother contends that clear and convincing evidence does not support
termination of her rights. Mother raises concerns about the findings related to the
previously dismissed CHIPS action and contest s the credibility of the case manager. But
this court defers to the district court on issues of credibility. In re Welfare of Child of T.D.,
731 N.W.2d 548, 555 (Minn. App. 2007). We conclude that the arguments regarding the
dismissed CHIPS petition are not properly before us on appeal.
The district court terminated mother’s rights based on four statutory grounds.1 The
district court concluded that mother substantially, continuously, or repeatedly refused or
neglected to comply with the duties imposed on her in the parent -child relationship by
failing to provide a stable, consistent, safe, and sober living environment pursuant to Minn.
Stat. § 260C.301, subd. 1(b)(2). The district court also concluded that, pursuant to Minn.
Stat. § 260C.301, subd. 1(b)(4), mother is palpably unfit , and pursuant to Minn. Stat.
§ 260C.301, subd. 1(b)(5), reasonable efforts failed to correct the conditions that led to
child’s removal.
The record is replete with evidence to support termination on at least one, if not all
of these statutory grounds. Mother attempted to work on her case plan, and did make some
progress. However, mo ther did not obtain the psychological examination or thera py
required under the case plan; she did not obtain an ARMS worker or a parenting mentor ;
and she did not obtain a driver’s license.

1 The district court determined that child was neglected and in foster care. However, this
statutory ground was not alleged in the termination petition and is therefore not an
appropriate basis for termination.

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While mother did find employment, it was temporary, and she was not employed at
the time of the trial. Mother did not recognize the safety concerns presented by father,
even after the incidents of domestic violence in their relationship. Mother was unable or
unwilling to acknowledge that domestic violenc e had occurred. Mother also missed ten
scheduled visits with child, as well as “several doctor visits” and had “sporadic and
minimal contact” with child’s foster parents even though she was “encouraged to
communicate with them.” The district court also c oncluded that termination of mother’s
parental rights is in child’s best interests, which mother does not contest.
Based on the record, we conclude that the district court’s decision to terminate
mother’s parental rights pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2), is supported by
clear and convincing evidence. The district court did not abuse its discretion by
involuntarily terminating mother’s parental rights.2
Affirmed.

2 Mother challenged the district court’s calculation of the timelines in its order terminating
her parental rights. However, at oral argument, her counsel conceded that the permanency
timelines were exceeded. Accordingly, we decline to address those arguments.