In the Matter of the Welfare of the Children of: C. F., Parent.

This opinion will be unpublished and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
A19-2099

In the Matter of the Welfare of the Children of:
C. F., Parent.

Filed August 3, 2020
Affirmed
Ross, Judge
Concurring specially, Reyes, Judge

Hennepin County District Court
File No. 27-JV-17-3800

David C. Gapen, Gapen, Larson & Johnson, LLC, Minneapolis, Minnesota (for appellants)

Rhia Bornmann Spears, Spears Family Law PLLC, Minneapolis, Minnesota (for
respondents S.B., S.P., and V.P.)

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human
Services and Public Health Department)

Patricia Stotzheim, St. Paul, Minnesota (for guardian ad litem Carolyn Bye)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The Hennepin County Human Services and Public Health Department removed
three children from the care of foster parents, declined their request for adoptive placement,
and placed the children with different foster parents instead. The first foster parents filed a
motion for adoptive placement and the district court granted it, concluding that the
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department was unreasonable in having failed to make the placement and that the first
foster parents offered the most suitable adoptive home to meet the children’s needs. The
second foster parents argue on appeal that the district court misapplied the law and made
clearly erroneous findings requiring reversal. Because we discern no error of law, and
because the district court’s findings are adequately supported by the record, we affirm.
FACTS
This case concerns the adoptive placement of three children: A.Q.F. (Boy One), a
nine-year-old African American boy; A.S.F. (Girl), a nine-year-old African American girl;
and C.W.W. (Boy Two), an eight-year-old African American boy (the children). In 2013,
the Hennepin County Human Services and Public Health Department learned that the
children’s brother C.W. (who is not a subject of this appeal) suffered severe child abuse.
The district court adjudicated the children in need of protection or services (CHIP S).
The department removed the children from their mother C.F.’s (Mother’s) care in
November 2014 and placed them in foster care with respondents S.P. and V.P. (Primary
Fosters), a married, heterosexual, African American, Baptist couple. In November 2017,
the department placed the children with appellants M.R. and B.R. (Replacement Fosters),
a married, female, same-sex, Caucasian, Lutheran couple. After the district court
terminated Mother’s parental rights, the Primary Fosters filed a motion for adoptive
placement under Minnesota Statutes section 260C.607, subdivision 6 (2018), and the
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district court conducted multiple evidentiary hearings. We now summarize the evidence
relevant to this appeal.1
Placement with the Primary Fosters
The department placed the children, who faced behavioral, emotional, and
mental-health problems, with the Primary Fosters in late 2014 and appointed social worker
Erika Posthumus to the case. The children’s problems varied. Boy One struggled with
emotional dysregulation, toileting habits, forced vomiting, and other issues. Girl exhibited
developmental delays, attention-seeking behaviors, and inappropriate sexual behaviors .
Boy Two suffered night terrors and struggled with dressing himself and toileting.
Department Social Worker Sarah Brunner began working with the children in October
2015 and observed that the Primary Fosters were meeting the children’s needs while
maintaining a positive, loving relationship. The children were active in school and
activities, maintained contact with their relatives, and were being raised in a Christian faith
tradition consistent with Mother’s wishes. By late 2015, Boy One began therapy and
received multiple diagnoses, including a stressor-related disorder. Girl was impulsive,
cried frequently, and exhibited inappropriate sexual behavior. Boy Two had nightmares
and was imitating some of Boy One’s problematic behaviors.
The Primary Fosters initially expressed interest in adopting the children, but they
later told department employees that they were not an option for permanent placement.

1 The children’s maternal grandmother S.B. (Grandmother) also moved for adoptive
placement, but the district court denied her motion. Grandmother took no appeal and no
party challenges the district court’s denial of her motion.
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Adoption Resource Worker Ginna Kellett testified, “When people aren’t certain about
adopting it is a concern. We want people to have a commitment to children and be
committed lifelong.” The Primary Fosters testified that they believed Mother’s parental
rights would be terminated immediately if the y expressed a willingness to adopt, and so
they waited, believing that Mother was progressing toward reunification.
Brunner testified that sometime around April 2016, the Primary Fosters’ and
Mother’s relationship soured as they began arguing about the children’s clothing and
Mother giving the children sugar. But Primary Foster Mother believed the conflict was
overblown and that Posthumus was creating discord between her and Mother. Child
therapist Alisabeth Kuol became Girl’s therapist in late 2016. Some of Boy One’s
behaviors had ceased by this time, such as his forced vomiting and self -inflicted
nosebleeds. But in December 2016, Boy One threatened to cut himself with scissors or to
strangle himself with a scarf at school.
Brunner left on maternity leave in August 2017, leaving Posthumus to cover her
cases. Mother gave birth to another child, J.N. (Boy Three), in September 2017. Posthumus
contacted the Replacement Fosters to ask whether they would foster Boy Three and the
children. According to the Primary Fosters, Posthumus never asked if they would foster
Boy Three.
Posthumus wrote the Primary Fosters on October 5, 2017, “to try to coordinate a
meeting . . . to sit down and connect about things with the children and to talk about starting
respite weekends for the kids with the new family that has [ Boy Three].” On October 16,
2017, the Primary Fosters, the Replacement Fosters, the children’s therapists, and several
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department representatives met. Different witnesses testified to different understandings of
the meeting’s purpose. The department employees generally testified that they had
intended to discuss plans to transition the children from the Primary Fosters’ care into the
Replacement Fosters’ home. The Primary Fosters believed the meeting was intended to
simply address the children’s ongoing difficulties. All the witnesses agreed that the Primary
Fosters stated during the October 16 meeting that they were willing to adopt the children.
But a conference summary indicated a plan to transition the children to the Replacement
Fosters’ home.
Removal from the Primary Fosters’ Home & Licensing Issues
On November 15, 2017, Posthumus notified the district court, “There is a licensing
issue in [the Primary Fosters’ home] and other concerns have arisen over the course of this
case (including a pattern of conflict between [ the Primary Fosters and Mother]). The
Department will be moving the children to live with their sibling [ Boy Three] . . . .”
Posthumus and Kellett arrived at the Primary Fosters’ home on November 17 to take the
children for what the Primary Fosters testified they believed was merely an overnight visit
with the Replacement Fosters. Posthumus allegedly did not inform them that the children
were being permanently removed until after they had gone. The next day Posthumus
prepared a notice to the district court representing that the Primary Fosters had informed
her that they did not want the children to return to them. The Primary Fosters denied ever
having told Posthumus that. On November 19, 2017, the Primary Fosters authored a letter
explaining their opposition to the children’s removal and stating that they would adopt the
children (and Boy Three) if the district court terminated Mother’s parental rights. Relying
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on information provided by Posthumus, Foster Licensing Worker Hung Tran cited the
Primary Fosters for three foster-care licensing violations.
Children’s Time with the Replacement Fosters
Kuol described that the transition from the Primary Fosters’ home and into the
Replacement Fosters’ home was traumatic for the children. The Replacement Fosters
reported to Kuol that the children were refusing to leave one another and wanting to sleep
in the same bed. Kuol attributed this to the children feeling insecure. Boy Two became
aggressive toward his siblings, avoided school work, and made “frequent medical
complaints.” Girl began crying regularly, had difficulty regulating her emotions, and began
threatening to harm herself and others. Boy One was struggling in school, was bossy, and
angered easily.
Child therapist Julie Hormann testified that she began providing therapy services to
the children in 2018. The children were each diagnosed with posttraumatic stress disorders
and struggled to regulate their emotions. Boy One was regressing in toileting habits, having
self-inflicted nosebleeds, testing boundaries with adults, and bullying other children. Girl
had “severe maladaptive behaviors in recent months,” self -harm ideations, and suicidal
ideations. But Hormann described a general trend of improvement in therapy. She made
significant progress with Girl, and the frequency and intensity of her problematic behaviors
decreased. Boy Two also improved. Hormann faced greater difficulty with Boy One, who
closed himself off emotionally. His progress was slow and halting.
The Replacement Fosters described their attempts to meet the children’s cultural
needs by mirroring familiar foods, activities, and schedules; curating African American art,
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books, and movies; celebrating Kwanza; attending a retreat for interracial families; and
initiating conversations acknowledging and addressing how the Replacement Fosters were
racially different from the children. Brunner, having returned from her leave, observed that
the Replacement Fosters were meeting all of the children’s physical- and mental-health
needs, including therapy to address the children’s behavioral difficulties. The Replacement
Fosters and the children were active in the Replacement Fosters’ Lutheran community. The
children remained active in school and activities, and the Replacement Fosters had enrolled
them in additional activities.
After initial visits with the Primary Fosters, the children reportedly made statements
about the Replacement Fosters’ homosexuality and referenced having been “stolen” from
the Primary Fosters. The Primary Fosters denied having made any derogatory comments
about the Replacement Fosters. The Replacement Fosters claimed that the department told
them to suspend any contact with the Primary Fosters, while Kellett testified that the
Replacement Fosters and the department reached that decision jointly. The Replacement
Fosters had not established relative contacts for the children, and said that they were
waiting to do so.
The district court terminated Mother’s parental rights to the children on March 30,
2018. Primary Foster Mother sent a message to Brunner, repeating her desire to adopt the
children. In May 2018, department employees met to discuss the children’s permanency
options. Social Worker Supervisor Emily Palmer recalled that the department decided not
to consider the Primary Fosters as a permanency option because of the pending licensing
issues. But she testified that she eventually understood that other factors influenced the
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decision: the Primary Fosters had not been consistently committed to adoption, Boy Three
had been placed with the Replacement Fosters, and the Primary Fosters had been having
conflicts with Mother.
The department formally recommended that the Minnesota Department of Human
Services (DHS) revoke the Primary Fosters’ foster-care license on May 31, 2018. DHS
revoked the Primary Fosters’ license in December 2018 based on allegations that the
Primary Fosters had failed to wash the children’s clothing, refused to allow the children to
return to their home after visiting the Replacement Fosters, and refused to return some of
the children’s belongings to them. The Primary Fosters appealed that revocation.
In early 2019, Boy Two and Girl were reportedly making significant progress
toward their treatment goals. But Boy One was referred to more intensive treatment due to
the Replacement Fosters’ “continuing concerns around aggressive and defiant behaviors in
the home setting and [ Boy One] ‘not making any progress in therapies in the past year.’”
He made steady progress regulati ng his emotional reactions and reducing the duration of
angry and aggressive behavior.
In May 2019, one day before the Replacement Fosters were scheduled to finalize
their adoption, the department decided that the relatives must be notified about the adoptive
placement. Kellett recounted how the children were disappointed and upset by the delay.
Hormann testified that she observed marked regressions in the children’s behaviors
generally aligning with the delay of their anticipated adoption.
On June 5, 2019, an administrative-law judge issued findings, conclusions, and a
recommendation determining that the department had failed to establish reasonable cause
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to believe that the Primary Fosters had committed any licensing violations. It found that
Posthumus was not credible “as a result of the personal conflict she had” with the Primary
Fosters. The Primary Fosters filed their motion for adoptive placement on June 26, 2019.
Replacement Foster Mother B.R. testified that, sometime around July 2019, the
children were again struggling emotionally. They were yelling, pushing, screaming,
stiffening their bodies, threatening self -harm, threatening others, banging on doors and
walls, and crying. Updates to the children’s diagnostic assessments in August 2019
indicated some regression. Girl exhibited “[s]ome regression in engaging emotion coping
skills when needed in the home setting,” and “[s]ome regression in reducing the frequency
and intensity of anxiety response in the home setting.” Boy Two continued “to struggle
with emotion coping,” with problematic behaviors occurring “multiple times a day with a
duration of over one year and a high level of intensity ,” and with “[s]ome regression
complying with expectations in the home setting.”
Also in August 2019, the district court ordered that the Primary Fosters be allowed
visits with the children. The Primary Fosters testified that the children warmed quickly to
them. The guardian ad litem observed that they remained connected to the Primary Fosters.
Later that month, the Minnesota Commissioner of Human Services generally adopted the
administrative-law judge’s recommendation in a final order, rescinding the revocation of
the Primary Fosters’ license.
By late 2019, Hormann and the guardian observed more difficulties in the children’s
behaviors and functioning. Girl was demonstrating more frequent outbursts and had begun
to struggle more in school. Boy Two was having frequent outbursts and exhibiting defiance
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at home and at school. Boy One was also struggling with anger and was facing difficulties
in school. Replacement Foster Mother B.R. testified that Boy One was struggling with
bed-wetting (which had been “nearly resolved” in the past) and high anxiety , requiring
medication. Hormann believed that the children were “moving in the direction of what
[she] would consider a secure attachment [with the Replacement Fosters] but they [were]
not there yet.”
Best-Interests Opinions
Brunner, Hormann, Kellett, Palmer, and the guardian believed that remaining with
the Replacement Fosters was in the children’s best interests, generally because it would
avoid the trauma of another home transition and because the Replacement Fosters were
meeting the children’s needs. Hormann testified that it was important for children to have
male role models in their lives and caregivers who look like them. But she clarified that it
was more important for the children to have emotionally responsive, loving caregivers.
Numerous witnesses testified regarding the children’s cultural needs as African
Americans. The children’s cousin doubted whether the Replacement Fosters understood
struggles unique to African Americans or could teach Boy One and Boy Two “what they
need to be able to survive . . . when a society looks at them like they have done something
wrong just because they have brown skin.” B.J.B., who was raised for several years in the
Primary Fosters’ home, testified that being part of the black community and “being around
[one’s] culture . . . makes you feel [safer]; you get to feel [freer]; you get to . . . be yourself
around your own community.” Primary Foster Father testified that it was important to teach
young African American boys “that you [have] one strike against you already for being
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black,” and that he believed the Replacement Fosters would be unable to teach the children
those types of lessons. A longtime friend of the Primary Fosters testified, “It’s difficult
walking around with a brown face . . . . It’s too difficult out here walking around with the
skin that we have at times. And for young men, it’s really almost impossible for them to
get it sometimes without knowing another man like the[m]selves or their color or
whatever.”
Findings, Conclusions & Order Granting the Primary Fosters’ Motion
The district court issued an 82-page order and a 15-page memorandum resolving
factual disputes and outlining its conclusions of law. In them, the district court granted the
Primary Fosters’ motion for adoptive placement on December 12, 2019, determining first
that the department was unreasonable in failing to make the Primary Fosters’ requested
adoptive placement, and concluding second that placement with the Primary Fosters was
in the children’s best interests. It found that the department knew that the Primary Fosters
were willing to adopt the children by October 16, 2017. It credited the Primary Fosters’
explanation that they did not present themselves as a permanency option sooner because
they believed that doing so would have precipitated the more immediate termination of
Mother’s parental rights. The district court found that Posthumus’s court-notification
“claim regarding the licensing issue was false” and that “the claim regarding the pattern of
conflict [between the Primary Fosters and Mother] was exaggerated to the point of
falsehood.” Regarding Boy Three, it found that “[n]o professional involved in this case
ever asked [ the Primary Fosters] if they would be willing to accept placement of [ Boy
Three], either as a foster placement or foster-to-adopt.”
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The district court rejected each of the department’s proffered reasons for not placing
the children with the Primary Fosters. It determined that the pending licensing action and
alleged conflicts between the Primary Fosters and Mother lacked an evidentiary basis and
instead reflected Posthumus’s misrepresentations. It rejected the department’s concerns
about the Primary Fosters’ hesitancy to be a permanency option as contrary to law. It did
so citing Minnesota Statutes section 260C.221(b)(2) (2018), which provides in part: “A
decision by a relative not to be identified as a potential permanent placement resource or
participate in planning for the child at the beginning of the case shall not affect whether the
relative is considered for placement of the child with that relative later.” And it rejected the
department’s proffered interest in placing the children with Boy Three because the
“situation was brought about by Posthumus’s placing [ Boy Three] apart from his
siblings . . . contrary to law.”
The district court also concluded that the Primary Fosters offered the most suitable
adoptive home to meet the children’s needs. It weighed several factors equally between the
two foster homes and weighed interests in consistency and existing community connections
in the Replacement Fosters’ favor. But it found that the children’s functioning and
behaviors, cultural needs, and relationships weighed strongly in the Primary Fosters’ favor.
It discredited witness testimony alleging a trend of overall improvement in the
children’s behaviors and mental health while in the Replacement Fosters’ care, instead
relying on contemporaneous records documenting the children’s increased difficulties.
Specifically, the district court found that the transition into the Replacement Fosters’ home
disrupted their progress and caused severe regression, leaving the district court with “the
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strong conviction that the children [were] not thriving in the care of [ the Replacement
Fosters].”
The district court also found that the children’s cultural needs weighed in favor of
placing the children with the Primary Fosters. It credited testimony addressing racial
prejudice and societal bias facing the African American community. It found that Primary
Foster Father “taught the children about growing up in this society as a black child, noting
they have one strike against them already.” And because the Primary Fosters are African
American, the district court reasoned that “they share that aspect of culture and can teach
the children about it.” The district court recognized the Replacement Fosters’ efforts to
meet the children’s cultural needs, but found that the Replacement Fosters had failed to
ensure that the children had any African American role models in their lives, either male
or female. The district court explained its reasoning as follows:
In a number of ways, [ the Primary Fosters] have already
proven their ability to help the children understand their racial
background and what it means to be a black child growing up
today in America. [The Replacement Fosters] have not proven
the ability to teach these lessons. [The Primary Fosters], as well
as other African-American people to whom they have exposed
the children, including therapists, fellow churchgoers, and
members of the children’s extended family, also provide a
mirror for the children. As the children’s current therapist
testified, having a caregiver who looks like the children
ethnically or racially is one of the things that is important for
children. Also enlightening was the lay opinion of the very
impressive, well- spoken young man who had spent much of
his young life growing up in [the Primary Fosters’] home, who
testified that it is important to see people who look like you;
being around one’s culture helps a person to feel safe, free, and
to be oneself. [ The Replacement Fosters] have not, in the
Court’s view, made a sufficient effort to give these children
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access to communities that share racial or ethnic a spects of
culture with them.
The district court additionally weighed the children’s relationships to their current
caretakers, parents, siblings, and relatives in favor of placement with the Primary Fosters.
It found that the children had a healthy, loving attachment to the Primary Fosters; that the
Primary Fosters had ensured the children had relationships with biological family members
while the Replacement Fosters had not; and that the children did “not yet have a secure
attachment with [the Replacement Fosters].”
The Replacement Fosters appeal.
D E C I S I O N
The Replacement Fosters ask us to reverse the district court’s order granting the
Primary Fosters’ motion for adoptive placement, arguing that the district court abused its
discretion by misapplying the law and making clearly erroneous findings. Because we
discern no misapplication of the law, and because the district court’s findings are supported
by the record, we affirm the district court’s order.
We first outline the procedure for transition from foster placement to adoptive
placement and our standard of reviewing the district court’s decisions. “[A]fter the district
court orders [a] child under the guardianship of the commissioner of human services . . . a
relative or the child’s foster parent may file a motion for an order for adoptive
placement . . . if the relative or the child’s foster parent” has an adoptive home study
approving the relative or foster parent. Minn. Stat. § 260C.607, subd. 6(a). On a prima facie
showing that the agency has been unreasonable in failing to make the requested placement,
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the district court conducts an evidentiary hearing. Id., subd. 6(b) –(c). At the hearing, the
agency first presents evidence explaining why it did not make an adoptive placement with
the movant. Id., subd. 6(d). “The moving party then has the burden of proving by a
preponderance of the evidence that the agency has been unreasonable in failing to make
the adoptive placement.” Id. If the district court concludes that the agency was
unreasonable in failing to make the adoptive placement, it must also consider whether “the
relative or the child’s foster parent is the most suitable adoptive home to meet the child’s
needs” by applying statutory best-interests factors. Id., subd. 6(e). The district court then
“may order the responsible social services agency to make an adoptive placement.” Id.
We review the district court’s grant of a motion for adoptive placement for an abuse of
discretion. See id. (stating “the court may order” (emphasis added)). A district court abuses
its discretion if its findings are clearly erroneous, see In re Welfare of Children of T.R.,
750 N.W.2d 656, 660–61 (Minn. 2008), or if it misapplies the law , In re Welfare of Child
of A.M.C., 920 N.W.2d 648, 654 (Minn. App. 2018). We address the district court’s
unreasonableness and suitability determinations separately.
I
The district court concluded that the department acted unreasonably by failing to
grant the Primary Fosters’ requested adoptive placement. The Replacement Fosters
contend that the district court misapplied the law by failing to defer to the department’s
decision and that the department acted reasonably by placing the children with the
Replacement Fosters.
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We are not persuaded by the Replacement Fosters’ argument that the district court
misapplied the law by failing to defer to the department. The argument requires us to
interpret section 260C.607, a task we undertake de novo. See In re Welfare of Children of
A.M.F., 934 N.W.2d 119, 122 (Minn. App. 2019). A motion for adoptive placement
requires the district court to determine whether “the agency has been unreasonable in
failing to make the [movant’s requested] ado ptive placement.” Minn. Stat. § 260C.607,
subd. 6(e). The statute does not define the term “unreasonable,” so we construe the term
according to its plain and ordinary meaning. See State v. Leathers, 799 N.W.2d 606, 609
(Minn. 2011). We look to dictionary definitions and apply them in their statutory context.
State v. Haywood, 886 N.W.2d 485, 488 (Minn. 2016). A plain- language definition of
“unreasonable” is, “Not guided by reason; irrational or capricious.” Black’s Law
Dictionary 1772 (10th ed. 2014). The term “unreasonable” is not ambiguous in the statute’s
context, and the statute therefore required the district court to consider whether the
department’s decision was unguided by reason, irrational, or capricious.
The district court applied a plain-language definition together with the standard of
review applicable to agency decisions described by the supreme court in RDNT, LLC v.
City of Bloomington, 861 N.W.2d 71 (Minn. 2015). Under that standard, a reviewing court
follows a two-step analysis to determine whether an agency’s decision is unreasonable,
arbitrary, or capricious: it must consider first whether the given reasons are legally
sufficient, and it must decide second whether those reasons have a factual basis in the
record. Id. at 75–76. We think the RDNT standard aligns generally with the inquiry required
by Minnesota Statutes section 260C.607, subdivision 6, but we are mindful that the context
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of adoptive-placement proceedings obviously differs from the denial of a conditional use
permit at issue in RDNT, 861 N.W.2d at 72. To the extent the Replacement Fosters contend
that the district court was bound to accept the department’s stated factual bases as true, we
reject the contention. The statute contemplates a movant’s ability to demonstrate by a
preponderance of the evidence that an agency has been unreasonable, requiring the district
court to weigh evidence and make factual determinations despite the fact that the agency
“shall proceed first with evidence about the reason for not making the adoptive placement.”
Minn. Stat. § 260C.607, subd. 6(d).
The Replacement Fosters insist that the district court “should have simply
determined whether there was a factually sufficient basis to support the [department’s]
determination.” But by determining that some of the department’s reasons rested on
fabrications, the district court was properly determining whether the departmental
reasoning had a factual basis in the record. See RDNT, 861 N.W.2d at 76. And by rejecting
certain reasons as contrary to law, the district court also determined whether the
department’s reasoning was legally sufficient. See id. at 75–76. The district court was not
substituting its judgment for the department’s judgment.
The Replacement Fosters insist that the Primary Fosters failed to demonstrate their
willingness to adopt the children until October 2017. But the Replacement Fosters fail to
challenge or acknowledge that the district court concluded that the reason was
impermissible as a matter of law under Minnesota Statutes section 260C.221(b)(2). The
Replacement Fosters bear the burden of demonstrating error on appeal, Waters v.
Fiebelkorn, 13 N.W.2d 461, 464–65 (Minn. 1944), and we do not reach issues that are not
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adequately briefed. In re Civil Commitment of Kropp, 895 N.W.2d 6 47, 653 (Minn. App.
2017), review denied (Minn. June 20, 2017). The district court’s unchallenged legal
determination resolves this issue.
We discern no error in the district court’s determining that some of the department’s
reasons lacked a factual basis. The district court found that Posthumus misrepresented the
circumstances underlying the Primary Fosters’ licensing issues, a finding supported by the
Primary Fosters’ testimony and buttressed by the commissioner’s findings and order
rescinding the license revocation. The district court’s finding that Posthumus exaggerated
the Primary Fosters’ conflict with Mother to the point of falsity is supported by testimony.
The district court also rejected the department’s claim that the placement with the
Replacement Fosters would reunify the children with Boy Three, reasoning that the
department had failed to inquire whether the Primary Fosters would accept Boy Three’s
placement and concluding that Boy Three’s placement was “brought about by Posthumus’s
placing the baby apart from his siblings in the first instance” in contradiction of Minnesota
Statutes section 260C.212, subd ivision 2(d) (2018) (“Siblings should be placed together
for foster care and adoption at the earliest possible time . . . .”). The Replacement Fosters
raise no specific argument undermining the district court’s decision rejecting this reason.
The district court’s findings are also not clearly erroneous, and its reasoning is sound.
The Replacement Fosters repeatedly attempt to characterize the district court’s
decision as one improperly focused on the department’s alleged misconduct regarding the
Primary Fosters rather than its reasoning supporting placement with the Replacement
Fosters. T his framing ignores the statutory directive for the district court to consider
19
whether the agency was unreasonable in failing to make the requested placement, see
Minn. Stat. § 260C.607, subd. 6(b)–(d), placing the focus on the department’s reasoning as
to the movant. The district court properly focused its analysis on the department’s
reasoning for failing to make the Primary Fosters’ requested placement.
We conclude that the district court did not abuse its discretion by determining that
the department was unreasonable in failing to make the Primary Fosters’ requested
placement.
II
We are likewise unconvinced by the Replacement Fosters that the district court
erroneously concluded that the Primary Fosters would provide the most suitable adoptive
home to meet the children’s needs. “[I]f the [district] court finds that the agency has been
unreasonable in failing to make the adoptive placement and that the relative or the child’s
foster parent is the most suitable adoptive home to meet the child’s needs using the
[best-interests] factors in [Minnesota Statutes section 260C.212, subdivision 2(b) (2018)],
the [district] court may order the responsible social services agency to make an adoptive
placement in the home of the relative or the child’s foster parent.” Minn. Stat. § 260C.607,
subd. 6(e). The district court considered ten relevant best-interests factors, but its
determination favoring placement with the Primary Fosters turned on three specific
factors: the children’s current functioning and behaviors, the children’s cultural needs,
and the children’s relationships. See Minn. Stat. § 260C.212, subd. 2(b)(1), (6), (9). The
Replacement Fosters argue that the district court made clearly erroneous findings and
engaged in prohibited consideration of race . We have reviewed the district court’s
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best-interests determination for an abuse of discretion. See In re Welfare of Children of
J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012). We
identify no clearly erroneous findings, and we do not read the district court’s references to
racial concerns as reflecting any abuse of discretion.
The district court did not clearly err by finding that the children’s functioning and
behaviors worsened in the Replacement Fosters’ care.
One factor the district court must weigh is the children’s “current functioning and
behaviors.” Minn. Stat. § 260C.212, subd. 2(b)(1). The district court found that this factor
weighed heavily in the Primary Fosters’ favor based on its “strong conviction” that the
children were not thriving in the Replacement Fosters’ care and its finding that the
children’s mental-health troubles had worsened after being placed with the Replacement
Fosters. The Replacement Fosters argue that the district court’s findings are clearly
erroneous because the district court “minimize[d] or fully ignore[d] the progress that the
children made in the care of [ the Replacement Fosters], while playing up any reports of
troublesome behavior made by [ the Replacement Fosters].” We reject the argument
because the district court’s findings are adequately supported.
Findings are clearly erroneous if they are “eith er manifestly contrary to the weight
of the evidence or not reasonably supported by the evidence as a whole.” T.R., 750 N.W.2d
at 660– 61 (quotation omitted). The Replacement Fosters describe the district court’s
findings as “baffling” and unsupported, emphasizing testimony tending to show that the
children’s functioning and behaviors actually improved over time. But the district court
chose to credi t contemporaneous records over witness recollections, and we are in no
21
position as an appellate court to reweigh evidence or disturb a district court’s credibility
determinations. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
The Replacement Fosters also understate the evidentiary support for the district
court’s findings. Testimony and contemporaneous records indicated that the children
suffered numerous behavioral and mental-health issues immediately after being removed
from the Primary Fosters’ home. The record documents a series of problematic behaviors
that evolved, sometimes improving and sometimes worsening. The district court did not
disregard the fact that the children made some behavioral and mental-health progress after
placement with the Replacement Fosters. But it relied primarily on continuing instances of
troubling behaviors, mental-health conditions, and regression that continued through the
time of trial. By emphasizing the children’s progress, the Replacement Fosters essentially
argue that the district court failed to assign greater weight to the evidence most favorable
to the children’s placement with them . Again, we defer to the district court’s weighing of
the evidence. See In re Welfare of J.H., 844 N.W.2d 28, 39 (Minn. 2014). The district
court’s findings are not manifestly contrar y to the weight of the evidence and are
reasonably supported by the record. See T.R., 750 N.W.2d at 660–61.
The district court did not abuse its discretion by impermissibly considering race.
The district court must consider “the child’s religious and cultural needs.” Minn.
Stat. § 260C.212, subd. 2(b)(6). The district court found that the children’s cultural needs
weighed in favor of placing the children with the Primary Fosters , reasoning that the
Primary Fosters had “proven their ability to help the children understand their racial
background and what it means to be a black child growing up today in America,” that the
22
Primary Fosters and others in their community would “provide a mirror for the children,”
and that the Replacement Fosters failed to gi ve the children “access to communities that
share racial or ethnic aspects of culture with them.” The Replacement Fosters argue that
the district court violated Minnesota Statutes section 260C.613, subdivision 4 (2018), by
giving the Primary Fosters preference for adoptive placement based upon race. They
implicitly argue that racial considerations are per se improper, and we see no support for
this implication in the law.
We review questions of law de novo. J.H., 844 N.W.2d at 34–35. The Replacement
Fosters cite federal and state law. But neither prohibits a court from considering race as a
component of a child’s culture in relation to potential foster parents. Federal law instead
prohibits states and state entities who receive federal funding from denying or delaying
foster placements “on the basis of the race, color, or national origin of the [caregiver], or
of the child.” 42 U.S.C. § 671(a)(18) (2018); see also 42 U.S.C. § 1996b(1) (2018). State
law likewise provides, “Placement of a child cannot be delayed or denied based on the race,
color, or national origin of the prospective parent or the child.” Minn. Stat. § 260C.613,
subd. 4; see also Minn. Stat. §§ 259.57, subd. 2(c), 260C.193, subd. 3(f), .212, subd. 2(c)
(2018). The supreme court has explained that, despite the statutory prohibition on delaying
or denying placement based on race or color, the cultural-needs factor “demonstrates that
those aspects of one’s identity that are informed by racial and ethnic heritage, cultural
values, and traditions passed across generations are relevant factors in determining the
child’s best interests.” In re S.G., 828 N. W.2d 118, 127 n.7 (Minn. 2013). The district
court’s comments appear to us to have properly considered race in this context, and do not
23
suggest that it improperly refused to place the children with the Replacement Fosters based
on race.
Minnesota Statutes section 260C.212 does not define the phrase “cultural needs,”
nor the term “culture.” One definition of culture is, “The set of predominating attitudes and
behavior that characterize a group or organization.” The American Heritage Dictionary
443 (5th ed. 2011). The Minnesota Department of Human Services has published a bulletin
regarding the treatment of race and color in the adoption context, favorably citing the
following definition of culture:
[T]he customary beliefs, social forms, and material traits of a
racial, religious, or social group; the characteristic features of
everyday existence . . . shared by people in a place or time; the
integrated pattern of human knowledge, belief, and behavior
that depends upon the capacity for learning and transmitting
knowledge to succeeding generations.
Minn. Dep’t of Human Servs., Consideration of Culture in Placement Decisions 5 (2018).
With these definitions in mind, we address the Replacement Fosters’ arguments and the
district court’s reasoning.
The Replacement Fosters contend that the district court used the term “culture” as a
stand-in for “race” and failed to consider what aspects of culture would be communicated
to the children in the separate foster homes. In similar fashion, the concurrence criticizes
the district court’s cultural assessment in relation to race and asserts, “Culture can be
taught. . . . If it is something that cannot be taught, then it is not culture.” But the district
court’s analysis was more nuanced than these protestations suggest. The district court
credited testimony that described problems of racial prejudice facing children in the
24
African American community and lessons that would help the children meet those
prejudices. Witnesses opined without objection about these issues, and the district court
relied on this testimony in determining that the children would “need to be taught how to
survive in a society that thinks they have done something wrong just because of their brown
skin,” and that they would need “to learn to deal with the types of situations that result in
black males, in particular, getting killed.” We are satisfied that this testimony comprises
beliefs and attitudes —aspects of culture —regarding African Americans’ relations to
broader American society. The district court specifically found that Primary Foster Father
“taught the children about growing up in this society as a black child” in the context of
likely biases against them. We do not view the district court’s analysis as impermissibly
“based on the race” of the children or either set of foster parents. We instead understand
the district court as recognizing that the Primary Fosters and the children share a racial
characteristic with cultural implications that would best facilitate “teach [ing] the children
about” that aspect of culture.
We add that the record undermines the concurring opinion’s accusation that the
district court failed to recognize that considerations of race are proper only to the extent it
informs culture. The district court expressly explained that the Primary Fosters had
“already proven their ability to help the children understand their racial background and
what it means to be a black child growing up today in America,” while the Replacement
Fosters had not. Those teachable lessons concerned how to navigate a society that
witnesses described as rif e with racial prejudices. The district court’s statement that the
“[Primary Fosters] are African[ ]American; thus, they share that aspect of culture and can
25
teach the children about it,” followed and referred specifically to Primary Foster Father’s
testimony “about growing up in this society as a black child” and having “one strike against
them already.” The district court here described a set of experiences influenced by race,
and beliefs informed by race, as it regards how a parent of black children can navigate
related challenges. This is a teachable theory of African American culture, one that the
district court found the Primary Fosters to have endeavored to impart to the children while,
in contrast, the Replacement Fosters had not. The district court also implicitly perceived
the Primary Fosters as better suited through their own experience to teach the children
about these concerns.
Because the district court’s reasoning as a whole included these clear cultural
concerns, we are not troubled by the district court’s statements that it was “important” that
the children have caregivers who look like them and that other African Americans (the
Primary Fosters and those in their community) would provide a “mirror” for the children.
Absent the full context of the district court’s analysis, perhaps we would doubt whether
those remarks actually bear on cultural needs . But we have reviewed the district court’s
thorough and thoughtful analysis carefully, and for the reasons just discussed, we are
unconvinced that its consideration of race violated section 260C.613, subdivision 4.
We add that the context of relevant witness testimony suggests that the discussion
of race a lso implicated a different best-interests factor. Hormann, for instance, did not
testify that racial similarity between child and caregiver is “important” to meet cultural
needs; she was instead describing what is important to an ideal child-caregiver relationship.
And if B.J.B.’s testimony about “being around [one’s] culture” was not actually remarking
26
on a cultural need, he was describing the effect of feeling safer and freer. In this way, racial
similarity in a caregiver or community is “important” in this case in the context of “the
developmental needs of the child.” See Minn. Stat. § 260C.212, subd. 2(b)(4).
We are not persuaded otherwise by the concurring opinion’s lengthy quoting of
what it describes as “impermissible” testimony by some witnesses. Neither the cited
testimony nor even the district court’s occasional crediting of some of the testimony is truly
at issue. We are instead reviewing whether the district court improperly considered race in
its analysis of culture to determine whether the district court denied foster placement with
the Replacement Fosters based on race. And t he record simply does not compel the
conclusion that it did so or suggest that it ignored their efforts to meet the children’s cultural
needs. To the contrary, the district court recognized that their effort showed that they in
fact attempted to meet the children’s cultural needs. But in determi ning that the Primary
Fosters were better suited to meet those needs, the district court did not abuse its discretion
by including a discussion of how culture relates generally to race or specifically to the races
of the potential adoptive parents.
The district court did not abuse its discretion by concluding that the children’s
relationships weighed in favor of a placement with the Primary Fosters.
The district court must weigh “the child’s relationship to current caretakers, parents,
siblings, and relatives.” Minn. Stat. § 260C.212, subd. 2(b)(9). The district court found that
this factor also weighed in the Primary Fosters’ favor because the children previously had
a secure and loving attachment to them, because the children did “not yet have a secure
attachment” with the Replacement Fosters, and because, unlike the Replacement Fosters,
27
the Primary Fosters had ensured that the children maintained their connection with their
extended family.
The Replacement Fosters argue that they credibly testified that they were waiting
for the adoption to be finalized so the children had a sense of permanency and security
before facilitating the children’s relationships with their family . The argument does not
undermine the district court’s finding that, “despite being, by all accounts, open to
relationships with relatives, [ the Replacement Fosters] have not, in fact, facilitated any
actual contact with relatives to date.” The district court was not required to credit the
Replacement Fosters’ promise that they would eventually promote the children’s
relationships with relatives. Faced with one set of foster parents who actively helped the
children maintain their familial relationships and another set who did not, we are not
persuaded by the argument that the district court’s reasoning was improper.
The Replacement Fosters suggest that the district court improperly relied on Kuol’s
lay testimony in considering whether the children had secure attachments with either set of
foster parents. Any potential error was surely harmless because Hormann’s expert opinion
indicated that the children lacked a secure attachment to the Replacement Fosters. And the
statutory best-interests factor concerns only “the child’s relationship to current caretakers,
parents, siblings, and relatives,” id., and the statute nowhere requires that relevant evidence
on the issue must come from an expert.
In conclusion, the district court did not misapply the law, nor are its findings clearly
erroneous. Our task on appeal is not to reweigh the evidence nor to substitute our judgment
28
for the district court’s broad discretion. We conclude merely that the district court did not
abuse that discretion, and so we affirm.
Affirmed.

CS-1
REYES, Judge (concurring specially)
I agree with the majority in affirming the district court ’s decision. However, I
respectfully disagree with the majority’ s conclusion that the district court appropriately
considered race when analyzing the culture factor in the best-interests analysis, which
cannot be considered in an adoptive-placement decision apart from how it informs culture.
I write separately to highlight the important distinction between culture and race, color,
and national origin.
Facts
In this adoption case, appellant-foster parents M.R. and B.R. (foster parents)
challenge the district court’s order granting the motion of respondent-foster parents S.P.
and V.P. (former foster parents) to adopt three of mother C.F.’s children: C.W.W., A.Q.F.,
and A.S.F. (the children). 2 I provide a brief summary of the facts relevant to the specific
issue of culture as a best-interests factor.
The children are African American. The Hennepin County Human Services and
Public Health Department (the department) originally placed the children with former
foster parents, who are a retired, opposite-sex, Baptist-Christian, African American couple.
They initially indicated that they were not interested in adopting the children. After the
department filed a second petition to terminate mother’s rights to newborn child J.N., it
contacted foster parents, who are a same-sex, Lutheran-Christian, Caucasian couple,
regarding their interest in being foster parents for the children and J.N. The department

2 To remain consistent with the district court’s terminology, I use the terms “foster parents”
and “former foster parents.”

CS-2
placed the children in foster parents’ home in November 2017. The district court
terminated mother’s parental rights to the children in March 2018. Foster parents signed
an adoption-placement agreement in May 2018. Former foster parents filed a motion for
adoptive placement in June 2019.
The department conducted a second best-interests assessment in July 2019 focused
on reviewing the children’s permanency options. The department concluded that
remaining with foster parents served the children’s best interests because foster parents met
the children’s needs and the children understood that they were going to adopt them .
Department social worker Sarah Brunner, child therapist Julie Hormann, adoption-resource
worker Ginna Kellett, social-worker supervisor Emily Palmer, and the guardian ad litem
also all believed that remaining with foster parents served the children’s best interests. The
district court analyzed the best-interests factors, and it granted former foster parents’
motion for adoptive placement in December 2019. This appeal by foster parents follows.
Discussion
Foster parents argue that the district court abused its discretion by relying on clearly
erroneous findings and an impermissibly race-based analysis to determine that the
placement served the children’s best interests. Specifically, they argue that the district
court violated Minn. Stat. § 260C.613, subd. 4 (2018), by giving former foster parents
preference for adoptive placement based on race. We review questions of law de novo. In
re Welfare of J.H., 844 N.W.2d 28, 34 (Minn. 2014).

CS-3
The proper consideration of culture under federal and Minnesota statutes and
caselaw

Federal law prohibits states and state entities that receive federal funding from
denying or delaying foster placements “on the basis of the race, color, or national origin of
the [caregiver], or of the child.” 42 U.S.C. § 671(a)(18) (2018); see also 42 U.S.C.
§ 1996b(1) (2018) (prohibiting denial or delay of adoption “on the basis of [] race, color,
or national origin”). Minn. Stat. § 260C.613, subd. 4, likewise provides, “Placement of a
child cannot be delayed or denied based on the race, color, or national origin of the
prospective parent or the child.” See also Minn. Stat. §§ 259.57, subd. 2(c), 260C.193,
subd. 3(f), .212, subd. 2(c) (2018). The Minnesota Supreme Court has noted that the
cultural-needs best-interest factor “demonstrates that those aspects of one’s identity that
are informed by racial and ethnic heritage, cultural values, and traditions passed across
generations are relevant factors in determining the child’s best interests.” In re S.G., 828
N.W.2d 118, 127 n.7 (Minn. 2013) (emphasis added).
Applying federal and state statutes and caselaw, the Minnesota Department of
Human Services has published a bulletin noting the proper consideration of culture in
adoption proceedings under the best-interests analysis:
[C]ulture is not the same as RCNO [race, color, and national
origin]. [The] Merriam-Webster [Dictionary] defines culture
as “the customary beliefs, social forms, and material traits of a
racial, religious, or social group; the characteristic features of
everyday existence . . . shared by people in a place or time; the
integrated pattern of human knowledge, belief, and behavior
that depends upon the capacity for learning and transmitting
knowledge to succeeding generations.”

CS-4
Minn. Dep’t of Human Servs., Bull. No. 18-68-17, Consideration of Culture in Placement
Decisions 5 (2018) [hereinafter Bulletin] (emphasis added). The bulletin further states that
“culture is fluid; it can be learned, developed and changed.” Id. (emphasis added). It
concludes by stating that “[a] public agency’s consideration of culture must comply with
MEPA-IEP [The Multiethnic Placement Act-Interethnic Provisions, Minn. Stat.
§ 260C.613, subd. 4] in that it may not use culture as a replacement for the prohibited
consideration of RCNO [race, color, and national origin].” Id. (emphasis added). In other
words, agencies and courts are prohibited from considering the immutable characteristics
of race, color, and national origin as factors on their own. They can be considered only to
the extent that they “inform” culture. S.G., 828 N.W.2d at 127 n.7. But culture is fluid; it
may be taught by any foster or adoptive parents, and it may be learned by children.
The bulletin further contains examples of appropriate and inappropriate
considerations of race, including how race may appropriately inform culture. An agency
may not state that it is “looking for an African-American family for this child” because that
statement is family -focused, too general, and would eliminate non-African American
applicants from adoption. Bulletin, supra, at 5. An example of appropriate consideration
of culture is as follows:
MEPA-IEP requires child-focused recruitment. A
caseworker can say, “I am recruiting an adoptive family for an
11-year-old boy who is connected to his African-American
culture. He celebrates Kwanza every year and enjoys
attending African -American cultural celebrations such as
Juneteenth and Rondo Days. I am looking for a family who is
willing and able to meet his cultural needs.” This description
is child- focused and has identified specific cultural needs,
rather than eliminating a broad base of prospective adoptive

CS-5
families. This description would include families of the same
culture as the child, as well as families able and willing to learn
about and celebrate occasions and events that are culturally
important to the child. The focus is on finding a family who
can meet the needs of that child.

Id. (emphasis added). Thus race can only be used to inform and identify the child’s cultural
background. The focus is on the child, the child’s culture, and how any family can learn
about, teach, and celebrate the child’s culture.
The district court’s analysis of the best-interests factors
In its best-interests analysis, the district court found that several factors weighed
equally between the parties, but it weighed four factors, including the cultural-needs factor,
in favor of former foster parents. It recognized that foster parents made significant efforts
to “mimic the foods and activities with which the children were familiar,” “curated books,
movies, and art around culture at their home,” “celebrated Kwanzaa and attended a retreat
for interracial families,” attended a cultural training, learned about African American hair
care, talked with the children about racial equity, and encouraged the children to feel pride
in who they are. The statute, caselaw, and the bulletin recognize exactly these permissible
cultural factors. See Bulletin, supra, at 5 (encouraging agency to look for families willing
to meet cultural needs of child connected to his African American culture and who
celebrates Kwanzaa and other cultural occasions).
The district court prefaced its analysis by recognizing that the law prohibits
restrictions or delays in placement on the basis of race or ethnicity, but it then stated that
“race and ethnicity can and should be considered in a home study; they are important in
every case.” This is an abuse of discretion. A district court cannot consider race and

CS-6
ethnicity on its own, nor can it be considered in this manner in a home study, much less in
every case. It can be considered only to the extent that it informs and provides context for
the child’s cultural needs.
The district court also credited the testimony of several lay witnesses, including the
children’s biological cousin T. S.- F., long-time friend of former foster parents R.H., and
former foster father. They opined on race and color, contrary to the department’s urging
that race could not be considered. For example, T. S.-F. testified:
Yes. I don’t really like to say it but, I mea n, the family
that they’re with [(foster parents)] I have nothing against the
way that they live their lives, but how can two white women
raise two black -- a black man? To teach him how society
looks at him? Or to teach him how to be a man? I don’t think
that they have what it takes because, for one, they don’t know
the struggle of being African American. They don’t know
the things that we have to deal with just being -- just being
black. You know, that’s a struggle in itself.

And to be a black male, you know, our black males get
killed all the time, you know, and I feel like they would give
them a false pretense of “Oh no, you just do what they want
and you’ll be fine,” and that’s not true all the time. So, I don’t
know that they know how to deal with situations like th at
because they’ve never been faced with situations like that.
. . . .
I don’t understand how they would possibly know the
half of how to teach [the children] what they need to be able to
survive in society when a society looks at them like they have
done something wrong just because they have brown skin.

CS-7
(Emphasis added.) This lay testimony impermissibly considers race on its own. Culture
can be taught. In particular, this lay testimony questioning “how can two white women
raise . . . a black man?” would exclude any white parents from raising a black child. 3
R.H. testified:
It’s difficult walking around with a brown face, even for
African-American elderly people like me. . . . And I think for
the children to be in a different environment and just jerked out
of an environment, I am just overwhelmed with concern. . . .
It’s too difficult out here walking around with the skin that we
have at times. And for young men, it’s really almost impossible
for them to get it sometimes without knowing another man like
themselves or their color or whatever.

(Emphasis added.) R.H.’s testimony likewise focuses on the race and color of the parents
and the need for the parents to look like the child. This testimony does not consider the
child’s cultural needs.
Former foster father testified:

And I myself, well—being a black man—only way you
can teach a kid -- especially young black boys, is that you got
one strike against you already for being black. And I don’t . . .
have any ill-feeling against [ foster parents] or anything like
that. It’s just that . . . being a black man in this world it’s going
to come down, you got one strike against you. They can’t teach
you that. They can’t teach any black kids that.

(Emphasis added.)

3 Distinguishing between permissible racially informed cultural considerations and
impermissible racial considerations on their own is not intended to detract from the very
significant concerns that the witnesses raise with respect to the challenges of being a Black
person in America.

CS-8
If it is something that cannot be taught, then it is not culture. See Bulletin, supra, at
5. This lay-opinion testimony, which assumes that foster parents cannot teach the children
about culture on account of foster parents’ race, reflects on race and color, which are
impermissible considerations. See Minn. Stat. § 260C.613, subd. 4.
The district court credited R.H.’s lay-opinion testimony that it is important that
children be around those who look like them and Hormann’s testimony that having male
role models in their lives and caregivers who look like a child is “important” for a child.
The district court also credited the following testimony of T. S.-F. and R.H.:
Black children need to be taught how to survive in a
society that thinks they have done something wrong just
because of their brown skin. They need to learn to deal with
the types of situations that result in black males, in particular,
getting killed. [] It is difficult to walk around with a brown face,
and is sometimes impossible for black young men without a
black man in their lives. [] It is important to see people who
look like you; being around one’s culture helps a person to feel
safe, free, and to be oneself.

(Emphasis added.) This testimony appears to conflate culture with race by stating that it
is impossible for a Black boy to be taught how to survive without a Black man in his life,
which would exclude any non-Black parent from parenting a Black child.
The district court also reasoned that former foster parents, “as well as other African-
American people to whom they have exposed the children, including therapists, fellow
churchgoers, and members of the children’s extended family, also provide a mirror for the
children.” (Emphasis added.) This reasoning is based on the testimony of Hormann and
the lay witnesses that described the importance of the children being around people having
a similar immutable physical appearance, which is an impermissible consideration of race

CS-9
and color. To the extent the district court credited testimony that gave primacy to race and
color and that assumed that white parents are unable to teach or facilitate the teaching of
African American culture to African American children, the district court abused its
discretion. To allow race to serve as a proxy for culture in this manner would reduce the
best-interests factor of culture into one that looks only at the race of parents in relation to
the race of a child.
I nevertheless concur in the majority opinion’s affirmance of the district court’s
order. The district court also found that the children had a healthy, loving attachment to
former foster parents that persisted despite the children’s removal. It also found that former
foster parents had ensured that the children had relationships with biological family
members. The record amply supports the finding that former foster parents are loving,
caring parents who are eminently qualified to adopt these children. Furthermore, the
district court found that three other best-interests factors favored former foster parents.
The district court made careful and thorough findings of fact. Moreover, it is clear
that the district court unquestionably tried to take into account the best interests of the
children in this case and carefully evaluated both sets of loving and qualified foster parents.
I commend the district court for its thorough and thoughtful analysis. But district courts
must be cautious about crediting testimony that goes solely to race, color, or national origin,
which is prohibited. Race may be considered to the extent that it provides context for the
cultural needs of a child, but it is impermissible to exclude parents based on their being of
a different race, color, or national origin than the child.