A20-0065

This opinion will be unpublished and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
A20-0064
A20-0065

In the Matter of the Welfare of the Children of:
J. B. and A. H., Parents. (A20-0064),

In the Matter of the Welfare of the Child of:
J. B. and D. V., Parents. (A20-0065).

Filed June 8, 2020
Affirmed
Worke, Judge

Otter Tail County District Court
File Nos. 56-JV-19-2572, 56-JV-19-2555

Kimberly Stommes, St. Cloud, Minnesota (for appellant J.B.)

Michelle M. Eldien, Otter Tail County Attorney, Benjamin G. A. Olson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent Otter Tail County Department of Human
Services)

Brian R. Geis, Fergus Falls, Minnesota (for respondent A.H.)

Stuart J. Kitzmann, Detroit Lakes, Minnesota (for respondent D.V.)

Ruth A. Lee, Fergus Falls, Minnesota (for children)

Janice Amundson, Dalton, Minnesota (guardian ad litem)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the termination of he r parental rights, arguing that the record
does not support the district court’s findings that she failed to rebut the presumption of
palpable unfitness and that termination is in the children’s best intere sts. Appellant also
argues that the district court erred by concl uding that reasonable e fforts failed to correct
the conditions leading to the out-of-home placement. We affirm.
FACTS
This termination-of-parental-rights (TPR) matter involves eight children. Appellant
J.B. is the children’s mother. A.H. is the father of seven children. D.V. is the father of the
youngest child.
In 2016, the children moved to Missouri to live with A.H.
1 J.B. was unable to move
due to her probation. During this time, J.B. had a child with D.J. In February 2019, J.B.’s
parental rights to this child were involuntarily terminated. The basis for the TPR included
previous physically assaultive behavior to ward her children, controlled-substance use
during her pregnancy, mental-h ealth issues, lack of functional stability, and a lack of
compliance and progress with the out-of-home-placement plan. D.J.’s parental rights were
also involuntarily terminated.
In August 2019, the children and A.H. moved back to Minnesota and resided with
J.B. and D.J. On August 17, 2019, police responded to the re port of a possible assault at

1 J.B. and A.H. apparently agreed to this a rrangement. However, the record is unclear as
to D.V.’s parenting involvement or why he consented to his child moving to Missouri.

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the residence. D.J. informed officers that the oldest child had hit him in the face and threw
a knife at him. The oldest child told officers that D.J. had h it him in the face and that he
responded by pulling out a knife. The oldest child also told deputies that D.J. had kicked
him in the stomach, which caused him to throw the knife at D.J. and call law enforcement.
Officers spoke with other family members but could not determin e who had been the
primary aggressor, so they did not arrest anyone.
The following morning, around 3:00 a.m., officers were dispatched to a motor-
vehicle crash with reported injuries. Officers observed a vehicle in a ditch that had struck
a tree. D.J. was in the drive r’s seat, J.B. was lying on the ground, one of J.B.’s children
was standing over her, and J.B.’s adult son wa s unconscious in the vehicle’s back seat.
D.J. told officers that he had smoked mariju ana an hour before the crash and had been
taking his prescription for clonazepam. J.B.’s child suffered a cut on his forehead and was
stumbling. J.B.’s child was transported to the hospital, where he informed medical staff
that J.B. gave him clonazepam. A blood test indicated that the child tested positive for the
presence of marijuana and benzodiazepine. 2 As a result of these incidents in August,
officers made a referral to respondent Otte r Tail County Department of Human Services
(the county) for an investigation.
On September 3, 2019, the county filed child-in-need -of-protection-or-services
(CHIPS) petitions. The petitions were granted th e same day. On September 4, 2019, the
county filed TPR petitions, alleging that J.B. was palpably unfit to be a parent pursuant to

2 Clonazepam is a benzodiazepine.

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Minn. Stat. § 260C.301, subd. 1(b)(4) (2018). On September 9, 2019, the county created
a safety plan requiring that J.B. stop her shar ed lease of the reside nce with D.J., secure
independent housing, and have only supervised contact w ith the children. The plan also
required that the children be enrolled in public school and that the co unty have access to
the children at all times.
In late September, the district court found that the TPR petitions established a prima
facie case in support of terminating J.B.’s parental rights and that her parental rights to her
infant child had been involuntarily terminated in February 2019. The following month,
J.B. entered a denial to the TP R petitions. The district court then ordered that the county
was relieved of its obligation to make reunification efforts.
The trial on the TPR petitions was held on November 26, 2019. The county moved
for the district court to take judicial notice of the previous TPR order. J.B. was present at
the commencement of trial, but left after the first break and did not return.
The district court received all of the coun ty’s exhibits without objection from J.B.
The exhibits included: the district court’s prior order involuntarily terminating J.B.’s
parental rights to her infant child; police repor ts from the August 2019 incidents; a child-
protection investigation summary; one child’s dental records; the chronology summary of
the county’s involvement; and the out-of-home-placement plans.
The county called two child-protection workers to testify. The first testified that
while J.B. had no physical contact with the children while they were in Missouri with A.H.,
she had telephone contact with them. The child-protection wo rker stated that the only
evidence of J.B.’s parenting progress was that she had a residence. She also testified that

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on August 29, 2019, J.B. called her and told her that there was conflict in the home and
that A.H. was abusing the children. The child-protection worker stated that after
responding to the home with law enforcement, J.B. “was pr imarily concerned with [the
oldest child’s] behavior toward [D.J.] and said that it was [the oldest child’s]’s fault that
[D.J.] was in jail” following the August incidents. She stated that it appeared that J.B. had
not distanced herself from D.J. The child-protection worker testified that while the children
appeared to love J.B. and wished to go home, it was in the children’s best interests to remain
in foster care because their medical and dent al needs had not been met by J.B., and they
were now receiving formal education and were socially engaged in the community.
The second child-protection worker tes tified that the children had significant
educational needs. He also testified that it appeared that none of the children had received
dental care and that at least three of them had significant dental issues. Further, the child-
protection worker noted that it appeared that none of the children had received eye care,
and two were given corrective lenses following their placement. He stated that the county
recommended terminating J.B.’s parental rights.
J.B. did not present any evidence. Her atto rney stated that even if J.B. had been
present, she would not have testified.
The oldest child testified ab out his altercation with D.J. on August 17, 2019. He
stated that he hoped that J.B. was no longer in a relationship with D. J. The oldest child
testified that he thought it was extremely important for the children to remain together. He
believed that J.B. could take care of them and stated that J.B. was a loving mother despite
her bad choices with D.J. Two of the other children also testified that they wanted to live

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with J.B. A third child, who did not testify, informed the district court of a preference for
the family to stay together.
In a written summary, the gu ardian ad litem (GAL) reco mmended that the district
court terminate J.B.’s parental rights. Th e GAL relied on the fact that J.B. did not
participate in the TPR trial, she failed to move out of the re sidence shared with A.H., she
had not resolved her mental-health issues, she continued her relationship with D.J. despite
its negative impacts on the children, and she had not cooperated with the county. The GAL
also noted that, “[t]hese children are incredibly resilient. Teachers all say how quickly they
are learning and catching up to their peers. They are making friends and interacting outside
their family. They all have bright futures ahead of them if give n the opportunities to
succeed.”
On December 19, 2019, the district court involuntarily terminated J.B.’s parental
rights in two separate orders. This court c onsolidated mother’s appeals of the district
court’s orders.
D E C I S I O N
J.B. argues that the record do es not support the district court’s findings that she is
palpably unfit to be a parent and that TPR is in the children’s best in terests. In addition,
she argues that the district court erred by concluding that reasonable efforts failed to correct
the conditions leading to the out-of-home placement.
“To involuntarily terminate parental rights, the district court must find that at least
one of the eight statutory cond itions for termination exist.” In re Welfare of L.A.F. , 554
N.W.2d 393, 396 (Minn. 1996). On appeal from a TPR order, an appellate court closely

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inquires into the sufficiency of the evidence to determine whether it is clear and convincing.
In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). This court reviews
a district court’s determination that a statutory basis for TPR exists and whether TPR is in
the children’s best interests for an abuse of discretion. In re Welfare of Children of J.R.B.,
805 N.W.2d 895, 901, 905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012).
Palpable unfitness
First, J.B. argues that the record does not support the district court’s finding that she
failed to rebut the presumptio n of palpable unfitness. J.B. also challenges the district
court’s factual findings, claiming that the TPR stemmed from the previous TPR
determination without consideration of “where she was at with the children at the time of
trial, and the improvements she had made.”
“Typically, the natural parent is presumed to be fit and suitable to be entrusted with
the care of his or her child.” In re Welfare of D.L.R.D. , 656 N.W.2d 247, 250 (Minn.
App. 2003). However, “[o]nce it has been shown th at the parental rights to one or more
children have been involuntarily terminated, Minnesota law presumes the parent to be
palpably unfit to be a party to a parent-child relationship.” In re Welfare of Child of T.C.M.,
758 N.W.2d 340, 343 (Minn. App. 2008); see also Minn. Stat. § 260C.301, subd. 1(b)(4).
If this presumption applies, the burden of production is on the parent to produce evidence
sufficient “to support a finding that the parent is suitable to be entrusted with the care of
the children.” In re Welfare of Child of J.A.K. , 907 N.W.2d 241, 246 (Minn. App. 2018)
(quotations omitted). The evidence necessary to rebut a presumption of palpable unfitness
need only “create a genuine issue of fact.” Id. If a parent introduces such evidence, the

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“presumption is rebutted and has no further function at the trial.” Id. (quotations omitted).
An appellate court reviews a district court’s determination as to whether a parent presented
evidence sufficient to rebut the presumption of palpable unfitness de novo. Id.
We determine that J.B. failed to prod uce evidence suffici ent to overcome the
presumption of palpable unfitness. Here, the district court took judicial notice that J.B.’s
parental rights to her infant child had been terminated in Fe bruary 2019. And while J.B.
was present at the beginning of the TPR trial, she left after the first break and did not return
for the remainder of the trial. She did not present any evidence or testimony that she was
suitable to be entrusted with the care of the children. Further, no other parties presented
evidence that J.B. was suitable to be entrus ted with the care of the children. A child-
protection worker testified that J.B. had secured a residence, appeared to have reduced her
illicit-substance use, and claimed to have ma naged her medications. However, there was
no evidence that she had addressed parenti ng skills, made progress toward resolving her
mental-health issues, gained em ployment, or distanced hersel f from D.J. Therefore, the
record supports the district court’s determination that J.B. failed to rebut the presumption
of palpable unfitness pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4).
Best interests
Next, J.B. argues that the record does not adequately support the district court’s
finding that TPR is in the childr en’s best interests. The best interests of the child are the
“paramount consideration” in a TPR proceed ing. Minn. Stat. §§ 260C.001, subd. 2(a)
(2018), see 260C.301, subd. 7 (2018) (stating that if a statutory basis exists to terminate
parental rights under Minn. Stat. § 260C.301 , subd. 1, the paramount concern is the

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children’s best interests). Even if a statutory basis for TPR ex ists, a district court cannot
terminate parental rights unless it is in the best interests of the child. J.R.B., 805 N.W.2d
at 905.
“In analyzing the best interests of the ch ild, the court must ba lance three factors:
(1) the child’s interest in preserving the parent -child relationship; (2) the parent’s interest
in preserving the parent-child relationship; and (3) an y competing interest of th e child.”
In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). “Competing interests include
such things as a stable environment, health considerations and the child’s preferences.”
J.R.B., 805 N.W.2d at 905 (quotation omitted). A nd when the interests of the parent and
those of the child compete, th e child’s interests are param ount. Minn. Stat. § 260C.301,
subd. 7.
The district court’s determination that TP R is in the children’ s best interests is
supported by the record. First, with the exception of the youngest child, there was evidence
that the children had an interest in preserving their relationship with J.B. Second, while
the district court noted that J.B. loved her children, the record re flects that her actions
contradicted a wish to maintain her parental rights. J.B. left the trial at the first break and
did not express her wish to maintain her pare ntal rights. She had also not addressed the
issues that led to instability in her life and she continued to maintain a relationship with
D.J., despite his actions that endangered the children.
Finally, the record supports the district court’s finding that the children’s competing
interests weigh in favor of the TPR. There was evidence that prior to their placement in
foster care, the children’s significant educa tional and medical needs had not been met.

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Following their placement, the children received medical care , social interactions, and
formal education. And while the children expr essed a wish to maintain their relationship
with J.B., their competing interests outweigh this preference. Therefore, the district court
did not abuse its discretion because the record adequately supports its finding that TPR is
in the children’s best interests.
Reunification efforts
Finally, J.B. argues that the district cour t erred by concluding that reasonable efforts
failed to correct the conditions leading to their out-of-home placement. Generally, in a
case involving out-of-home placement, a soci al-services agency is required to make
reasonable efforts to facilitate reunification between a parent and child. Minn. Stat.
§ 260.012(a) (2018); I n r e Chi l d of P. T., 657 N.W.2d 577, 583- 84 (Minn. App. 2003),
review denied (Minn. Apr. 15, 2003). However, under the statute, the district court can
relieve an agency of this obligation when a parent’s rights to another child have previously
been involuntarily terminated. See Minn. Stat. § 260.012(a)(2) (“Reasonable efforts . . .
for . . . reunification are always required exce pt upon a determination by the court that a
petition has been filed stating a prima facie case that . . . the parental rights of the parent to
another child have been terminated involuntarily.”).
As a threshold matter, we note that the dist rict court’s TPR orde rs did not include
findings about reunification efforts. However, the district court pr eviously relieved the
county of its obligation to make reasonable efforts to reunify J.B. and the children. Here,
the district court found that th e TPR petitions established a pr ima facie case of palpable
unfitness due to the prio r involuntary termination of J.B.’s parental rights to her infant

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child. Therefore, the district court did not err by not making reunification findings in its
TPR orders given that it properly relieved the county of its reunification obligations in this
case.
Affirmed.