In the Matter of the Welfare of the Child of : B.E.M. and J.M.M., Parents

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0188

In the Matter of the Welfare of the Child of :
B.E.M. and J.M.M., Parents

Filed June 29, 2020
Affirmed
Schellhas, Judge*

Mille Lacs County District Court
File No. 48-JV-19-610

Cathleen L. Gabriel, Annandale, Minnesota (for respondent B.E.M.)

Joe Walsh, Mille Lacs County Attorney, Briana J. Williams, Assistant County Attorney,
Milaca, Minnesota (for respondent Mille Lacs County Community and Veteran’s Services)

Lisa Zwack, Princeton, Minnesota (guardian ad litem)

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

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
B.E.M. (mother) appeals the termination of her parental rights to child, arguing t hat
the record does not support the district court’s determination that statutory grounds for
termination existed and that termination was in child’s best interests. We affirm.
FACTS
Mother gave birth to child who is the subject of this proceeding in 2013. J.M.M.
(father) is the adjudicated father of child.1 Child was born prematurely at 24 weeks and has
significant medical needs. Child is diagnosed with, among other things, spastic
quadriplegic cerebral palsy, periventricular leukomalacia ,2 chronic lung disease,
developmental delay, and gastroesophageal reflux disease. Child depends on a gastrono my
tube. After birth, child spent seven months in the neonatal intensive care unit and three
months at the University of Minnesota. Child’s special medical needs necessitated m other
and father’s completion of an educational program to learn the skills needed to care for
child before child’s release into their care.
Child has lived in several homes since birth. Initially, child lived in St. Cloud with
his parents but moved to his maternal grandmother’s home in 2016. In December 2016, the
house in which child resided was destroyed by fire. In March 2017, child and his parents
moved into the home of one of father’s co-workers. While living there, mother and father’s

1 The district court terminated f ather’s parental rights in April 2019 , and father is not part
of this appeal.

2 Periventricular leukomalacia is a brain injury that can affect children born prematurely.

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relationship deteriorated, leading to domestic disturbances. During that time, c hild had
poor attendance at medical appointments.
In 2018, Mille Lacs County Community and Veteran Services (MLCCVS) receive d
reports of neglect. MLCCVS “received reports of parents fighting, verbally and physically,
in front of the [c]hild on various occasions.” In September 2018, MLCCVS petitioned for
adjudication of child as a child in need of protection or services (CHIPS), and the district
court ordered child’s out-of-home placement. Child has remained in out -of-home
placement since September 7. The court adjudicated child as CHIPS on September 21. On
October 8, the district court adopted an out-of-home case plan for mother, father, and child.
The case plan required mother to attend all of child’s appointments , complete a
psychological evaluation and follow its recommendations, engage in medicatio n
management, attend supervised parenting time, ensure that child’s feeding tube was
operating as prescribed, cooperate with developmental disability waiver services, and
obtain safe, stable, chemical-free, and violence-free housing.
In March 2019, MLCCVS petitioned the district court to terminate mother and
father’s parental rights (TPR petition) . The TPR petition alleged five statutory grounds:
neglect of parental duties under Minn. Stat. § 260C.301, subd. 1(b)(2) (2018); palpable
unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4) (2018); failure of reasonable efforts
to correct the conditions leading to out -of-home placement under Minn. Stat. § 260C.301,
subd. 1(b)(5) (2018); egregious harm under Minn. Stat. § 260C.301, subd. 1(b)(6) (2018);
and child is neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8) (2018).

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Mother and father failed to appear for a hearing o n April 26, 2019, and the district
court therefore terminated their parental rights to child by default. The parents appealed
the district court’s default order. 3 On August 1, 2019, this court reversed the default order
and remanded the case for further proceedings. See In re Welfare of Child of B.E.M. , No.
A19-0811, 2019 WL 5304527 (Minn. App. Oct. 21, 2019). On remand, mo ther denied the
TPR petition at a new admit/deny hearing, and the district court set the matter for trial in
December 2019.
At the TPR trial, t he district court heard testimony from a child -protectio n
investigator, child’s clinical dietitian, child’s fos ter parent, two of child’s medical doctors,
child’s paraprofessional, a MLCCVS case manager, a MLCCVS adult mental -health case
manager, mother’s therapist, mother, and the guardian ad litem. Following the trial, the
district court ordered the involuntary termination of mother’s parental rights.
This appeal follows.
D E C I S I O N
I. Statutory Grounds for Termination of Parental Rights
In a detailed and thorough order, the district court found that MLCCVS proved five
statutory grounds for termination, that MLCCVS made reasonable efforts to reunite the
family, and that termination of mother’s parental rights served child’s best interests.
“A district court has broad discretion when determining whether to terminate
parental rights.” In re Welfare of M.A.H ., 839 N.W.2d 730, 739 (Minn. App. 2013).

3 Father dismissed his appeal.

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Appellate courts “review the district court’s findings to determine whether they address the
statutory criteria for termination of parental rights and are not clearly erroneous.” In re
Children of T.R., 750 N.W.2d 656, 660 (Minn. 2008). “A finding is clearly 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 the Children of S.R.K. , 911 N.W.2d 821, 830
(Minn. 2018) (quotation omitted).
“[Appellate courts] affirm the district court’s termination of parental rights when at
least one statutory ground for termination is supported by clear and convincing evidence
and termination is in the best interests of the child, provi ded that the county has made
reasonable efforts to reunite the family.” In re Welfare of Children of S.E.P. , 744 N.W.2d
381, 385 (Minn. 2008) (citations omitted).
A district court may terminate the rights of a parent if the court finds that a parent
“has substantially, continually, or repeatedly refused or neglected to comply with the duties
imposed upon that parent by the parent and child relationship.” Minn. Stat. § 260C.301,
subd. 1(b)(2). Parental duties include “providing the child with necessary food , clothing,
shelter, education, and other care and control necessary for the child’s physical, mental, or
emotional health and development.” Id. Under this subdivision, a district court must
consider “if the parent is physically and financially able, and e ither reasonable efforts by
the social services agency have failed to correct the conditions that formed the basis of the
petition or reasonable efforts would be futile and therefore unreasonable.” Id. “Failure to
satisfy requirements of a court -ordered ca se plan provides evidence of a parent’s

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noncompliance with the duties and responsibilities under section 260C.301, subdivisio n
1(b)(2).” In re Welfare of Children of K.S.F. , 823 N.W.2d 656, 666 (Minn. App. 2012).
Mother argues that the district court erre d by concluding that clear and convincing
evidence supported termination of her parental rights under the five statutory grounds
alleged in the TPR petition. T he court found that mother failed to comply with parental
duties under Minn. Stat. § 260C.301, su bd. 1(b)(2), and concluded that the evidence of
mother’s failure was clear and convincing. The court found that mother failed to provide
adequate medical care for child, failed to provide the necessary educational services to
child, and failed to protect c hild by failing to address her own mental health needs. The
court also found that mother made “minimal progress” on her case plan. Mother argues
that the court erred because “the record demonstrates that [mother] has made progress in
her case plan albeit shortly before trial.” We disagree.
The district court’s detailed and thorough findings of fact, conclusions of law, and
order reflect the court’s careful attention to the voluminous record in this case and are
supported by that record. Before child’s plac ement in foster care , he was diagnosed with
failure to thrive because he was not meeting milestones for physical, social, or motor-skills
development. Child’s former doctor testified that, in her medical opinion, child’s “failure
to thrive was primarily due to insufficient calories, so he wasn’t fed enough.” A second
doctor agreed that after child entered foster care, he eventually overcame his failure -to-
thrive diagnosis because “he was being fed properly as his medical providers directed once
he entered foster care.” When child first entered foster care, he was in the 0.01 percentile
for weight and the 0.02 percentile for length. After one month in foster care, child was in

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the 3.44 percentile for weight and the 0.8 percentile for length. After one year in foster
care, child gained just over 11 pounds, which “exceeds expectations for his age.”
When child arrived in foster care, his foster parent should have rec eived from
mother just under 10 cases of child’s formula, based on the formula provided to mother .
Mother instead gave c hild’s foster parent 14 full cases. Child’s dietitian testified that
having “[e]xcess formula to that volume left over would be [be cause] the intended volume
[of formula] was not given consistently.” Child’s doctor testified that instead of giving
child his full feedings of formula, mother told her that she would feed child half formula
and half an “electrolyte containing basically wa ter.”
When child entered foster care in 2018, he was approaching his fifth birthday but
had the cognitive, physical, and social development skills of a three -month old. Child was
unable to sit up unassisted and “had a flat affect, a child who was unable to interact with
those around him on a social, emotional level.” Just over a year later, child was nearly six
years old and functioned at the age of a three year old. Child developed a “[h]uge
personality,” bonded with people, and could walk in a gait trai ner.
During his first few months in foster care, child “averaged at least five appointments
per week.” For example, he needed to have four teeth pulled because of excessive decay.
At the time of trial, child attended physical therapy, occupational therap y, and speech
therapy. Child commonly has “two to three different . . . appointments per month.” Child
is prescribed 15 medications and receives medication eight times per day.
The district court heard testimony from multiple witnesses concerning mother’s
failure to regularly attend child’s medical and therapy appointments. During the CHIPS

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phase of the child protection proceedings, mother attended 34 of child’s 52 appointments.
Mother arrived late to 10 of the 34 appointments that she attended. Those tot als exclude
appointments for which mother had a “considerable excuse like transportation didn’t show
up or a car didn’t start.”
Before entering foster care, child had inconsistent attendance at school. His
paraprofessional testified that during the 2016 -2017 school year, child’s attendance was
“sporadic.” When he first started preschool, “he was like an infant,” but by the end of the
school year, he could sit unassisted and hold himself up in a crawl stance. When child
returned to preschool for the 2017 -2018 school year, “it was back to square one. He
couldn’t sit up. He was back to just laying.” He attended only five days of school during
the 2017-2018 school year. The paraprofessional testified that at the beginning of the 2018-
2019 school year, child a gain could not sit, stand, or support weight. By the end of the
school year, he could sit, stand, walk in a gait trainer, and “had a personality.” Child’s
attendance was described by his paraprofessional as the “best [she] had seen.”
A MLCCVS case manage r testified concerning the out -of-home placement plan ,
which states that mother agreed to, among other things, “obtain safe, sober, stable
housing,” “gain employment,” “complete a psychological evaluation and follow all
recommendations,” “engage in individual therapy,” “engage in domestic violence classes,”
and “engage in medical appointments for [child].” The record reflects that , at the time of
trial, mother did not fully engage in medical appointments for child, had only contingent
housing plans, and did not have a job. Although mother has participated in mental -health
services and is working with adult rehabilitative mental -health services , she does not

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appear to have ever consistently complied with the recommendations of her service
providers. Mother has continued to cancel or fail to attend appointments, which has resulted
in providers refusing to provide mother services.
The record as a whole supports the district court’s finding s and its conclusion that
the county proved by clear and convincing evidence that mother failed to comply with her
parental duties. Because the district court did not err in terminating mother’s parental rights
under Minn. Stat. § 260C.301, subd. 1(b)(2), we do not need to consider the other bases
for termination. S.E.P., 744 N.W.2d at 385 (“[Appellate courts] affirm the district court’s
termination of parental rights when at least one statutory ground for termination is
supported by clear and convincing evidence and termination is in the best interests of the
child, provided that the county has made reasonable efforts to reunite the family. ”)
(emphasis added).
II. Best Interests of Child

Even if the district court finds that a statutory ground for termination is met, “the
district court must separately find that termination is in the child’s best interests.” In re
Welfare of Child of J.K.T. , 814 N.W.2d 76, 92 (Minn. App. 2012). When terminating a
parent’s rights to a child, “the best interests of the child must b e the paramount
consideration.” Minn. Stat. § 260C.301, subd. 7 (2018). “Where the interests of the parent
and child conflict, the interests of the child are paramount.” Id.
“In analyzing the best interests of the child, the court must balance three fact ors:
(1) the child’s interest in preserving the parent -child relationship; (2) the parent’s interest
in preserving the parent -child relationship; and (3) any competing interests of the child. ”

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In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). “Co mpeting interests include
such things as a stable environment, health considerations, and the child’s preferences.” Id.
The district court’s determination that termination of parental rights is in a child’s best
interest is reviewed for an abuse of discret ion. In re Welfare of Children of J.R.B. , 805
N.W.2d 895, 905 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012).
The district court balanced each of the three factors and found termination to be in
the child’s best interests. The district court found that
the competing interest of the Child to have a stable
environment, and the need for consistent care necessary to
meet the Child’s complex medical needs, both of which cannot
be provided by Mother now or in the foreseeable future,
outweigh the Child’s interest in maintaining the parent -child
relationship and also outweighs Mother’s interest in
maintaining the parent-child relationship.

Mother argues that she is bonded with child and that “[s]he will be able to meet all
of [child]’s needs.” We disagr ee. The record amply reflects the court’s careful
consideration and weighing of the best -interests factors and supports the district court’s
best-interests determination.
Affirmed.