In re the Matter of the Welfare of the Children of: D. A. M. and R. A. L., 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This opinion will be unpublished and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
A19-1997

In re the Matter of the Welfare of the Children of:
D. A. M. and R. A. L., Parents.

Filed May 26, 2020
Affirmed
Segal, Chief Judge

Jackson County District Court
File No. 32-JV-19-55

Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, Minnesota (for
appellant mother D.A.M.)

Sherry E. Haley, Jackson County Attorney, Jackson, Minnesota (for respondent
Des Moines Valley Health and Human Services)

R.A.L., Albert Lea, Minnesota (pro se respondent)

Carma Nordahl, Sheldon, Iowa (guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
The district court revoked a stay of the termination of par ental rights (TPR) of
mother. On appeal, mother argues that (1) the district court’s finding that mother engaged
in sexual abuse of her children is not supported by the evidence; (2) the county failed to

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prove actual harm to the children caused by the sexual abuse; (3) mother was not provided
with “reasonable services” for sexual abuse; and (4) it is not in the best interests of the
children to terminate mother’s parental rights. We affirm.
FACTS
Appellant mother D.A.M.’s child -protection case began on April 30, 2018 , when
her two daughters, D.L. and F.L., ages 3 and 2, were found alone in a gas station near a
highway.1 D.A.M. stated that she had fallen asleep and was not aware the girls had gotten
out of the home . A social work er went to mother’s home and no ted that the home was
cluttered and the kitchen was full of dirty dishes. Additionally, the bathroom was out of
order and human feces were smeared on the wall, blankets, and mattress of the children’s
room. Mother stated that the feces had been there for two to three days.
Respondent Des Moines Valley Health and Human Services (the county ) filed a
child in need of protection or services (CHIPS) petition , and on May 16, 2018, mother
admitted to the CHIPS petition. The district court found that the children were in n eed of
protection or services. The children have been in out-of-home foster placement with the
same foster parents since April 30, 2018.
The county filed a TPR petition on June 26, 2019. As the factual basis for the TPR
petition, the county alleged that mother struggles with her independent living skills and her
support network has historically involved people who are not safe for her children and , at
times, not safe for her. The county also alleged that mother is “easily overwhelmed by the

1 Father R.A.L. consented to the adoption of the children and does not challenge the
termination of his parental rights.

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various life events and the obligations of adult life” and “[mother’s] progress with
developing [independent living] skills has been very slow.” The petition noted that both
children are young and have high needs, with delayed educational and speech development,
among other issues. Additionally, the county alleged that “[t]he children are in need of
consistency and stability in order to grow and develop their full potential,” and that
“[c]ontinuing to have uncertainty of who will provide for them, when, where and whether
their needs will be met will repeat the cycle of neglect and trauma for the children.”
During a settlement conference on September 9, 2019, mother admitted to the TPR
petition pursuant to Minn. Stat. § 260C.301, subd. 1(b)(5) (2018). The district court stayed
entry of the TPR order, subject to mother’s compliance with a set of 18 conditions ,
including the requirement that she fully participate in therapy; maintain clean, safe, stable
and suitable housing for her children; fully cooperate with social workers; “be honest” with
the guardian ad litem and social worker “at all times”; live full-time, including sleeping, at
her apartment; only allow pre -approved care providers to watch her children; only allow
pre-approved adults and teens around her children; develop and maintain a consistent and
age appropriate routine for her children; and “demonstrate her ability to consistently meet
her children’s needs.”
Background facts relevant to this appeal, include concerns about the sexualized
behaviors of the children reported by the foster parents when the girls first came to live
with them. The foster parents observed that both children would lift their shirts up and
“wiggle.” When asked what they were doing, one of the children said, “that’s what back

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mom does.”2 The children would also “lay on top of each other” and “do things,” and they
would “touch[] each other in [in]appropriate spots.” Additionally , both children would
masturbate with a doll or stuffed animal.
The foster parents told the children’s therapist and social worker about this behavior
and that it was occurring on a “regular basis.” The therapist and social worker suggested
that the foster parents redirect this behavior and not let them sleep with the dolls or stuffed
animals, which is what the foster parents did. The masturbatory behavior decreased over
the time the children lived with the foster parents, but would happen more frequently “after
longer visits” to mother’s house. This behavior was also reported to mother in July 2018,
when the social worker in charge of the case talked to mother about it and mother said she
was aware the children had exhibited the masturbatory behavior prior to the children being
placed in foster care.
The incident that resulted in revocation of the stay occurred during a trial home visit
that began on September 30, 2019. This was the first trial home visit of the children with
mother since February 2019. The children returned to their foster parents on October 5,
2019, as planned, for respite care. On October 5, foster father and F.L. were sitting in the
kitchen while F.L. was fini shing dinner. Foster father asked F.L. if “anything weird
happened” when she was home with mother that week. According to the foster parents,
“weird” is the phrase the children use to describe “everything that’s unusual or
inappropriate.”

2 Both of the children refer to mother as “back mom.”

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F.L. responded that “back mom had taken off her clothes and her underwear and her
boo-boo,” F.L.’s word for bra. F.L. also said that her mother turned around, unbuckled her
bra “and wiggled.” F.L. then said that mother “laid on her” without her clothes on and
“was wiggling her butt,” and her mother “peed on her and she got wet” and had to take a
bath. F.L. told foster father that this happened in her bedroom and she tried to stomp on
mother’s foot and said, “No, back mom. That’s disgusting.” Foster father “ just let her
talk” and then asked some follow-up questions to clarify what she said. Foster father said
that F.L. was “very matter of fact about the whole thing ” when she told him what had
happened.
Foster mother came into the kitchen and asked F.L. what happened at mother’s
house. F.L. then repeated the same story. When retelling the story, F.L. took off her pants
and shirt, mimicked unhooking a bra, laid on the floor and “wiggled her butt.”
The foster parents had not heard the children suggest that anyone sexually abused
them prior to this incident. Neither of the children had previously talked about anyone else
engaging in these behaviors with them.
At church the next day, the foster parents shared with their attorney what F.L. had
told them the night before. The attorney approached F.L. to see if she would give her the
“same story. ” The attorney asked F.L. if anyone had any accidents and she replied
“mommy peed on me.” The foster parents then called the social worker and reported what
F.L. had told them.
The next day, separate forensic interviews were conducted with the children at the
Jackson County Sherriff’s Office. F.L. made disclosures in the interview consistent with

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her previous disclosures, but in less detail. D.L. also made a disclosure that was consistent
with F.L.’s disclosure, but did not reference F.L. as the victim in the forensic interview.
Home visits were terminated, and the children remained with their foster parents.
In November 2019, a two-day contested hearing was held on the revocation of the
stay of termination of mother’s parental rights. Both foster parents testified to F.L.’s
disclosure and to the children’s previous sexual behaviors. The foster parents’ attor ney
testified to her conversation with F.L. The case manager , the guardian ad litem, and the
forensic interviewer testified, and the video and audio recordings of the interviews as well
as transcripts were entered into evidence. Mother testified on her o wn behalf and called
one of her friends as a witness.
In a written order, the district court revoked the stay of termination of mother’s
parental rights. Specifically, the district court found the allegations of sexual abuse against
mother to be cr edible. The district court concluded that there is “clear and convincing
evidence that the children were out of the home for over one year, that reasonable services
were provided to Mother, and that Mother was unable to correct the conditions which led
to the out of home placement” and that termination of parental rights was, therefore,
appropriate pursuant to Minn. Stat. § 260C.301, subd. 1(b)(5). The district court noted,
specifically, that even with the services provided to mother she was “not able to keep her
children in a safe and stable home and to care for them.” The district court concluded that,
while mother was in compliance with many of the conditions of the stay, she was,
nevertheless, in violation because “[h]er acts of abuse failed to meet the ch ildren’s needs
of having a safe and stable home.” Finally, the district court undertook an analysis of the

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“best interests of the child” as required by Minn. Stat. § 260C.301, subd. 7 (2018), and
concluded that, given the findings of sexual abuse by mothe r, “it is not in [the children’s]
best interests to be returned to a home that continues to be unstable because Mother cannot
provide for their needs and security over her own needs” and that the children’s best
interests are served by adjudicating the ter mination of mother’s parental rights. Mother
appeals.
D E C I S I O N
Mother argues on this appeal that the revocation of the stay must be reversed
because: (1) the district court’s finding that mother engaged in sexual abuse with her
children is not supp orted by clear and convincing evidence; (2) the county failed to
demonstrate actual harm to the children; (3) the district court erred in concluding that
reasonable services were provided to mother because she was not offered services for
sexual abuse; and (4) the district court erred in concluding that termination was in the best
interests of the children because a significant bond existed between the children and
mother. We address each argument below.
Standard of Review
When a termination of parental rights is entered due to the revocation of a stay of a
TPR order, the record must contain clear and convincing evidence that one or more
statutory grounds for the TPR were present at the time of the revocation and that the parent
failed to comply with the conditions of the stay such that the revocation is warranted. In
re Welfare of Children of D.F., 752 N.W.2d 88, 94 (Minn. App. 2008). Appellate review
“of an order terminating parental rights is limited to determining whether the district court’s

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findings address the statutory criteria, whether those findings are supported by substantial
evidence, and whether they are clearly erroneous.” Id. A decision to terminate parental
rights must be supported by clear and convincing evidence that (1) at least one statutory
ground for termination exists , (2) the county made reasonable efforts to rehabilitate the
parent and reunite the parent and child , and (3) termination is in the child’s best interest s.
In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
I. The record supports the district court’s finding of sexual abuse.

Mother alleges that the district court erred in revoking the stay of termination of her
parental rights because the county did not prove by clear and convincing evidence that she
sexually abused the children.3 This court reviews a district court’s factual findings for clear
error, considering whether they are supported by substantial evidence and address the
appropriate statutory criteria. In re Welfare of A.R.B., 906 N.W.2d 894, 897 (Minn. App.
2018). “A finding is cle arly 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).
The county presented the following evidence at the revocation hearing that
demonstrated mother engaged in the alleged sexual acts. The children’s foster father
testified to the initial disclosure of abuse. Wh en he asked F.L. if anything “weird”

3 We note that it has not yet been decided whether “clear and convincing” is the proper
standard of proof to establish a violation of a condition of a stay for a TPR order. We need
not reach or decide this issue, however, because the record supports the district court’s
finding of sexual abuse, regardless of which standard of proof is applied, “clear and
convincing” or “preponderance of the evidence.”

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happened, foster father testified that : F.L. said “back mom had taken off her clothes and
her underwear and her boo -boo, which is her bra, and she mentioned that she had turned
around and unbuckled it, and turned around and-and wiggled”; F.L. then said that mother
“laid on her” without her clothes on and “was wiggling her butt” and “peed on her and she
got wet” and had to take a bath; and F.L. told foster father that this happened in her bedroom
and she tried to stomp on mother’s foot and said, “No, back mom. That’s disgusting.”
The children’s foster mother and the foster parents’ attorney provided testimony that
further supported the district court’s finding. Foster mother testified about F.L.’s
disclosure to her whic h was consistent with the disclosure to foster father. And foster
mother testified that, during the disclosure to foster mother, F.L. took off her pants and
shirt, mimicked unhooking a bra, laid on the floor and “wiggled her butt.” The foster
parents’ attorney testified that F.L. told her that “mommy peed on me” when she asked her
if anyone had any accidents.
In addition, the foster parents testified about the sexualized behavior of the girls that
they had reported early on to the social worker and therapist, including the fact that the
children would lift up their shirts and wiggle, saying “that’s what ‘back mom’ does” and
that the younger child would pull her diaper down, and lying on top of a doll or stuffed
animal, move up and down simulating sexual activity.
The social worker who conducted the forensic interviews (forensic interviewer) also
testified at trial. F.L. told the forensic interviewer that “back mom” “put her butt on [her].”
And she “wiggle[ed her] butt” on F.L.’s back when mother’s clothes were off. She said
that mother peed on her when she “wiggled her butt on [her].” She also said that she hid

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in her closet so “back mom won’t pee on me” and “back mom started wiggling her butt on
[D.L.].”
The forensic interviewer asked D.L. if anyone wiggles their butt. D.L. replied “back
mom” and that she does this with her clothes off . When asked “does her butt touch
anything or touch anybody,” D.L. replied, “me.” D.L. went on to say that mother touches
D.L.’s butt with mother’s butt. D.L. said that this happens “all the time” and that mother’s
“front butt” touches D.L.’s butt. D.L . also stated that mother makes her “put her head to
her boo boo,” which is her word for breasts. And that mother makes her “put her head to
her back butt and front butt.” When asked if anyone else makes her do this, D.L. said only
her mother. The video and audio files and transcripts of the forensic interviews were also
entered into evidence.
In addition, the forensic interviewer testified that she met with mother twice in
mother’s home after the allegations were made . Mother told the forensic interviewer that
she had no idea what the children could be talking about, but it “was possible that the
children had witnessed sexual activity between her and their father .” The district court
noted in her findings that mother had not resided with the fa ther since January 2017,
“making it unlikely that the girls would remember something from when they were only
two and one years old.” Mother told the interviewer th at the children never had any
accidents, but the interviewer noted a bag of urine soiled children’s clothing in the laundry
basket at mother’s house and that mother could not locate one pair of F.L.’s pajamas.
The district court found that F.L.’s statemen ts were detailed and consistent . The
court noted that F.L. also demonstrated what happened as she was describing it. The court

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further found that, while the children appeared to be a bit distracted at times during the
forensic interview, both children were consistent on two points, that “it is ‘back mom’ and
she wiggles her butt.” The distri ct court noted in her findings that it is “highly unlikely
that a 3 and 4 -year old could . . . get together and create a story, with the same details
consistently repeated without it actually happening.” The district court thus found that the
children’s allegations were credible.
On this record, w e conclude that the evidence supports the district court’s finding
that mother sexually abused her children.
II. Evidence of actual harm to the children is not a required statutory element of
proof.

Mother next argues that, even if the sexual abuse occurred, the record does not show
that the children suffered harm from mother’s conduct. However, mother appears to be
conflating the requirements for finding a child in need of protection or services under Minn.
Stat. § 260C.007, subd. 6(3) (2018), with terminating parental rights under Minn. Stat.
§ 260C.301, subd. 1(b)(5). The cases cited by mother in support of her argument involved
appeals from determinations that a child was in need of protection or services , not a
termination of parental rights. The county is not required to show that the children suffered
harm as a separate element in order to terminate parental rights . See S.E.P., 744 N.W.2d
at 385. Harm to the children is subsumed as part of the “best interests” analysis.4

4 And, as set out in section IV of this opinion , the district court properly concluded that
termination was in the children’s best interests.

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III. The county provided relevant services to mother to address the issue that
resulted in the termination of her parental rights.

In order to terminate parental rights,
the court shall make specific findings: (1) that reasonable
efforts to finalize the permanency plan to reunify the child and
the parent were made including individualized and explicit
findings regarding the nature and extent of efforts made by the
social services agency to rehabilitate the parent and reunite the
family; or (2) that reasonable efforts for reunification are not
required as provided under section 260.012.

Minn. Stat. § 260C.301, subd. 8 (2018).5
“Reasonable efforts” means “the exercise of due diligence by the responsible social
services agency to use culturally appropriate and available services to meet the needs of
the child and the child’s family.” Minn. Stat. § 260.012(f) (2018). The district court, when
determining whether reasonable efforts were made, “shall consider whether services to the
child and family were: (1) relevant to the safety and protection of the child; (2) adequate
to meet the needs of the child and family; (3) culturally ap propriate; (4) available and
accessible; (5) consistent and timely; and (6) realistic under the circumstances.” Minn.
Stat. § 260.012(h)(1)-(6).
“The court shall review the out-of-home placement plan and may modify the plan.”
Minn. Stat. § 260C.202(c) (2018). A case plan is “presumptively reasonable” if it has been
approved by the district court. S.E.P., 744 N.W.2d at 388. After the district court has

5 Minnesota Statutes provide that reasonable efforts for reunification are not required in
limited circumstances. See, e.g., Minn. Stat. § 260.012(a)(5) (2018). The county did not
bring this case under those statutory provisions.

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approved a case plan, “the appropriate action for a parent who believes some aspect of the
case plan to be unreasonable is to ask the court to change it.” Id.
Mother argues that sexual abuse of the children was neither identified as an issue in
any of the case plans nor was she offered treatment for sexual abuse . At the contested
hearing to revoke the stay of the TPR, however, the guardian ad litem testified about the
original case planning surrounding the children’s sexual ized behavior. She testified that
case planning occurred regarding the children’s behavio r when they required mother to
make sure that “people she was around and allowing access to her children were safe people
that would not sexually harm her children.” At the initiation of the CHIPS case, the
guardian ad litem had expressed concern about the people mother affiliated with when her
children were present because some of these people had “prior sexually abusing behaviors
with other children” and mother, at the time, was living with a registered sex offender.
While mother’s case plan did not specifically address sexual abuse, there were
substantial services provided to mother over a long period of time , including individual
and family therapy, a parenting-capacity assessment and parenting classes, as well as
mental-health services. Moreover, the case plan was modified multiple times during the
course of mother’s case, and mother had an opportunity to ask for additional services, but
from the record it does not appear that she did so. Additionally, on September 9, 2019,
when mother entered an admission on the grounds for termination of her parental rights
pursuant to Minn. Stat. § 260C.301, subd. 1(b)(5), she admitted that the conditions that led
to out-of-home placement had not been corrected, and that reasonable services had been
provided to her to help her correct those conditions.

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“Whether the county has met its duty of reasonable efforts requires consideration of
the length of time the county was involved and the quality of effort given.” In re Welfare
of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).
Here, the county was involved with case planning with mother for approximately a year
and a half. It provided multiple services, all of which were aimed at helping mother provide
safety and stability for her children and to help her meet the needs of her children. The
fact that mother was not offered services specifically related to her sexual abuse of her
children is not the fault of the county. Mother had many opportunities during therapy and
otherwise to disclose the issue and seek assistance. The district court’s conclusion that
reasonable services were provided by the county is supported by the record.
IV. The record supports the district court’s best-interests determination.

“The paramount considerati on in all juvenile protection proceedings is the health,
safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2018). Even if
the county establishes a statutory ground for termination, the district court must find that
termination is in the best interests of the children. In re Children of T.A.A. , 703 N.W.2d
702, 709 (Minn. 2005). A district court must balance three factors when addressing the
children’s best interests: “(1) the child[ren]’s interest in preserving the parent-child
relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any
competing interest of the child[ren].” In re Welfare of Children of J.R.B., 805 N.W.2d 895,
905 (Minn. App. 2011) (quotation omitted), review denied (Minn. Jan. 6, 2012); see also
Minn. Juv. Prot. P. 58.04(c)(2)(ii). Competing interests for the children “include such

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things as a stable environment, health considerations and the child’s preferences.” In re
Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).
“[D]etermination of a child’s best interests is 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 interests is inappropriate because it invo lves credibility
determinations.” In re Welfare of Child of D.L.D ., 771 N.W.2d 538, 546 (Minn. App.
2009) (quotation omitted).
Mother argues that it is not in the children’s best interests to terminate her parental
rights. The district court noted that both children “care about their mother, however they
are too young to express a clear preference.” It also noted that mother “would like to parent
her children and demonstrate that she can meet their needs and care for them.” The district
court then went on to analyze the third factor, competing interests of the children, and
noted:
[The children] have an interest in having a stable home. While
mother has shown a willingness to work at services, it has been
over a year and a half of working with her to b uild her
independent living skills and to provide the children [with a]
safe and stable home. Now, after the children only being
returned home for a week, that safety and stability is again
disrupted by their removal again due to mother’s abuse.

A stable environment, health considerations, and the child’s preferences may be
competing interests. R.T.B., 492 N.W.2d at 4. Here, the district court focused on the need
for the children to have a stable home and noted that the children’s stability is “disrupt ed”
by mother’s actions. The court also noted that the children’s allegations of sexual abuse
were credible and “given those findings it is not in [their] best interests to be returned to a

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home that continues to be unstable because mother cannot provide for their needs and
security over her own needs.”
Because the district court considered and balanced the three best-interests factors, it
did not err when it determined that revocation of the stay of termination was in the
children’s best interests.
Affirmed.