In the Matter of the Welfare of the Children of: T. T. and T. B., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0474

In the Matter of the Welfare of the Children of: T. T. and T. B., Parents.

Filed September 8, 2020
Affirmed
Bryan, Judge

Mower County District Court
File Nos. 50-JV-19-604, 50-JV-18-1263

Shellie Lundgren, Minneapolis, Minnesota (for appellant mother T.T.)

Kristen Nelsen, Mower County Attorney, Aaron Jones, Assistant County Attorney, Austin,
Minnesota (for respondent county)

Thomas J. Nolan, Jr., Minneapolis, Minnesota (for respondent guardian ad litem)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
After remand for additional findings, the district court terminated appellant’s
parental rights. Appellant challenges the following three aspects of the district court order:
(1) the district court’s decision not to reopen the record; (2) the district cou rt’s factual
finding that one of the minor children stated a preference against returning to live with
appellant; and (3) the district court’s determination that termination of appellant’s parental
rights is in the best interests of her two minor children. We conclude that the district court

2
did not abuse its discretion regarding the record after remand, the district court did not
clearly err in making the challenged factual finding, and the district court did not abuse its
discretion in its best interests analysis. We affirm the district court’s termination of
appellant’s parental rights.
FACTS
In December 2017, respondent Mower County Health and Human Services filed a
Child in Need of Protection or Services (CHIPS) petition on behalf of F.B., the minor child
of appellant mother (T.T.). Both T.T. and F.B.’s father, T.B., initially entered denials in
response to the CHIPS petition. Neither parent appeared at the pretrial hearing. The district
court proceeded by default, adjudicated F.B. a child in need o f protection or services, and
placed F.B. in foster care. T.T.’s second child, B.T., was born in June 2018 . Respondent
filed a CHIPS petition on behalf of B.T. and after T.T.’s admission, the district court
adjudicated B.T. a child in need of protection or services. After approximately nine
months, the county filed separate termination of parental rights (TPR) petitions for the two
children. T.T. attended the admit/deny hearing for the TPR petitions in April 2019, was
appointed counsel, and entered denials on the TPR petitions. In May 2019, the district
court found T.B. in default, terminated his parental rights, and held a TPR trial to address
the petitions relating to T.T. The district court terminated T.T.’s parental rights. T.T.
appealed and this court remanded for additional findings. In re Welfare of Child of T. T.,
No. A19-1050, 2019 WL 6837959, at *7 (Minn. App. Dec. 16, 2019).
On remand, the district court scheduled a hearing for December 30, 2019, and T.T.
did not personally appear. Based on the evidence from the TPR trial, the district court

3
made supplemental findings and terminated T.T.’s rights in March 2020. T.T. appealed
that decision. We address the pertinent evidence1 from the TPR trial in 2019, the facts
relating to the December 30, 2019 hearing, and the district court’s supplemental findings.
A. TPR Trial
The district court held a TPR trial on May 14, 2019. At the trial, the district court
received the testimony of two mental-health practitioners, two social workers, the guardian
ad litem (GAL) , and T.T. Both social workers and the GAL testified that the primary
concern was T.T.’s need to obtain safe and independent housing. These witnesses also
testified regarding the impact that this had on the children and that F.B. was afraid of the
strangers inside the home. During one visit, F.B. was locked out of his bedroom. One of
the social workers testified regarding concerns that T.T. and her mother permitted a
registered sex offender and drug users inside the house. The GAL also testified regarding
similar concerns. In one interview with the GAL, F.B. volunteered information regarding
a man who hid under the bed during the GAL’s visit. In this conversation, F .B. reported
that he “was really scared that that man under the bed was going to get mad at you because
he was really angry when he heard you were coming in the door.” When the GAL asked
about the man, F.B. told him the man had driven him to school before . The GAL stated
that he later had a conversation with the man, and believed he was a registered sex offender
who was not permitted to have contact with minors.

1 We previously summarized the trial testimony after the initial appeal. T.T., 2019 WL
6837959, at *2 -4. In this opinion, we address the contested factual finding and the
supplemental findings made by the district court after remand.

4
The district court also received several exhibits int o the trial record. Exhibits 1 to
18 consist of the district court’s own previous orders after various hearings in 2018 and
2019. Paragraph 5 of Exhibit 5 includes F.B.’s stated residential placement preferences as
of April 2018:
[The GAL] stated [F.B.] is an extremely articulate
kindergartner who is thriving in school; is opinionated about
what he wants; and he wanted the Court to know he has never
been happier or felt safer and wants to remain where he is at.
[F.B.] also wants a haircut, but [T.T.] will not give permission
to [Mower County He alth and Human Services] to have his
hair cut.

Although T.T.’s attorney noted that T.T. “has some disagreement” regarding F.B.’s
preferences at a subsequent hearing, paragraph 4 of Exhibit 6 includes F.B.’s stated
residential placement and visitation preferences as of June 2018:
[The GAL] stated [F.B] is attending individual therapy;
is thriving and happy in the foster home; does not want to go
to supervised visits and throws a fit with the foster mother
before, during, and after visits; he has had a taste of normal
life, and at six years of age he is very intelligent, likes the
normalcy, and has made it clear he wants to remain there.

Paragraph 4 of Exhibit 9 included a similar statement of F.B.’s preferences as of
July 2018: “[F.B.] goes through trauma w ith visitation, does not want to return home.”
Other trial exhibits show that over the next several months, the situation apparently
improved as T.T. began unsupervised visitation with F.B., to the point that the GAL
reported more positively, stating that he observed “steady progress,” and that “[F.B.] is
starting to count on his mother and realizing she is going to be there for him.” Beginning
in November 2018 and continuing through the final order from March 2019 (admitted as

5
at Exhibit 18), the GAL voiced concern regarding the stability of T.T.’s residence and the
number of adults visiting and sleeping overnight at T.T.’s residence. Ultimately, the GAL
reported that due to these concerns and a number of other issues, including F.B. getting
locked out o f his bedroom and “a male party hiding under a bed,” the county suspended
unsupervised visitation. The GAL was not asked and did not testify as to F.B.’s stated
preference regarding termination at the TPR trial.
In June 2019, the district court terminated T.T.’s parental rights to F.B. and B.T.
The district court found that the county proved by clear and convincing evidence that
reasonable efforts failed to correct the conditions leading to the children’s out -of-home
placement because T.T. had failed to o btain safe, secure, and independent housing.
However, the court made no mention of the best interests factors.
B. Appeal, Remand, and Supplemental Findings
Mother appealed the district court’s order, arguing that the district court abused its
discretion when it terminated her parental rights. This court concluded that the district
court did not abuse its discretion when the district court determined that T.T. continually
failed to find and provide safe, secure, and independent housing, and when the district court
determined that, therefore, T.T. failed to correct the conditions leading to the out-of-home
placement. T.T., 2019 WL 6837959, at *6 . This court also stated that “the record in this
case reflects the nature of T.T.’s relationship with her children.” Id. at 7. However, this
court determined it was not clear that the district court considered the interests of T.T. in
preserving the relationship with F.B. and B.T., or vice versa, as is required by the

6
Minnesota Rules of Juvenile Protection Procedure. 2 Id. Because the district court’s
findings and conclusions lacked the required analysis regarding the children’s best
interests, this court determined it was unable to conduct a meaningful appellate review of
this issue. Id. This court remanded for supplemental findings and stated that “the district
court, at its discretion, may reopen the record to permit consideration of the children’s best
interests.” Id.
A hearing was held on December 30, 2019, to address this court’s decision. Notice
of the hearing was filed on December 17, 2019.3 The notice stated that if a parent failed to
appear at a hearing, the district court may conduct the hearing without them and enter an
order “permanently severing the parent’s rights pursuant to a termination of parental rights
petition.” T.T.’s lawyer was present at the hearing and represented her. An attorney for
the county and an attorney for the GAL were also present. The district court first requested
the attorneys to address whether to reopen the record. The county attorney stated that the
trial evidence already addressed the requisite findings and requested that the district court
supplement the original findings based on the closed record:
Your Honor, I think from the [respondent’s] review of
the Opinion and the record, we believe the facts are actually
there, especially in regards to a lot of the Guardian ad Litem’s
testimony, the social worker’s testimony, just about the effects
on the child and, honestly, quite a few statements or opinions
of the child that were put into the record through the Guardian
ad Litem and the social worker about his desires. At least the

2 Previously, the best interests factors were included in rule 39.05, subd. 3(b)(3), however
as of September 1, 2019, they are now included in rule 58.04 (c)(2)(ii). Minn. R. Juv. Prot.
P. 39.05, subd. 3(b)(3) (2018); Minn. R. Juv. Prot. P. 58.04 (c)(2)(ii) (2019).
3 It is not clear from the record submitted to this court whether the attorneys or the parties
were served electronically, by mail, or personally.

7
older child going forward. And, again, the—the Opinion does
give the Court discretion that may reopen the record, but it
seems like the factors are —are known for the Court to make
findings on why a termination would be in the best interests of
the child.

The attorney for the GAL agreed, and state d that he did not see any need to reopen the
record. T.T.’s counsel also addressed the issue on her behalf. T.T.’s counsel agreed with
the other two attorneys and informed the district court that he was not requesting to reopen
the record. He added that he had not had any contact with T.T. in quite some time, and he
had no way to contact her.
The district court agreed with the attorneys’ assessments and declined to reopen the
record. The district court set a deadline for the parties to submit proposed s upplemental
findings. A substitution of counsel for T.T. was filed the following week, and T.T.’s new
counsel filed proposed findings one week later. The district court took the submissions
under advisement , and in March 2020 , filed its supplemental find ings of fact. In the
supplemental findings, the district court made 28 additional paragraphs of factual findings.
One paragraph related specifically to the first best interests factor. The district court
determined the following:
With regard to the first factor, there can be a
presumption that children, generally, have an interest in
preserving the parent-child relationship. [F.B.] is old enough
to express a preference, but [B.T.] is not. It is unclear from the
record whether [F.B.] has stated a prefere nce regarding his
mother’s parental rights being terminated. However, [the
GAL], whose testimony the Court finds credible in its entirety,
testified and the Court finds that [F.B.] has told [the GAL] that
he does not desire to return to live with his mother.

8
The district court also included one paragraph regarding the second factor, finding
that T.T. had a desire to maintain the parent -child relationship with her children: “With
regard to the second factor, evidence at trial indicated that [T.T.] has a de sire to maintain
the parent-child relationship with her children. [T.T.] stated that she does want to and is
able to parent her children and wants them returned to her care.”
The district court then devoted the bulk of its supplemental findings to the thi rd
factor. In summary, the district court found the following: T.T. stated that she was unable
to control who was coming in and out of the apartment; T.T. stated she did not know
whether any of these individuals were “doing drugs or was a user;” F.B. has been scared
during visits with his mother because of the presence of others in the home; T.T. failed to
provide a safe and stable environment by “not prevent[ing] strange and dangerous or
potentially dangerous individuals from entering her home;” T.T. did not engage in any of
the ongoing services provided to her to obtain safe and independent housing or change her
behavior in any meaningful way; T.T. has never seriously attempted to live alone, but
always maintained roommates/housemates; T.T. lacked “insigh t into what led to the
children’s removal;” T.T. is not presently able or willing to maintain safe, suitable housing
for herself and her children; T.T.’s inability to provide safe, stable housing will continue
for a prolonged, indefinite period of time; T. T. was not credible when she testified; and
T.T. made invalid excuses and engaged in falsehoods to explain her failures. 4 Based on
these findings, the district court determined that the children’s interests in a safe and secure

4 T.T. does not argue that the district court clearly erred in making any of these factual
findings.

9
environment outweighed the children’s and T.T.’s interests in maintaining the parent-child
relationship, justifying termination of T.T.’s parental rights. This appeal followed.
D E C I S I O N
I. Decision Not to Reopen the Trial Record

T.T. challenges the district court’s decision no t to reopen the record, arguing that
the district court erred by making this decision in T.T.’s absence. We are not persuaded
because T.T.’s counsel appeared, did not object to proceeding in her absence, and agreed
not to reopen the record. In addition, given the scope of the remand in this case, the district
court acted within its discretion when it declined to reopen the record.
First, we conclude that T.T. forfeited appellate review of these issues. We note that
T.T.’s counsel appeared on her behalf.5 T.T.’s counsel did not object and did not raise any
concerns regarding her absence or the adequacy of the notice provided to the parties and
their attorneys. Similarly, T.T.’s counsel voluntarily acquiesced to proceeding with
supplemental proposed findi ngs instead of requesting to submit any additional evidence.

5 T.T. argues that the district court violated the rules regarding closure of hearings and
presence of litigants. T.T. does not address whether her attorney’s presence satisfied these
rules. We have previously held that the appearance of counsel may substitute for a
litigant’s absence. See, e.g., Matter of Welfare of A.Y. -J., 558 N.W.2d 757, 760 (Minn.
App. 1997) (affirming termination of a father’s parental rights despite his absence at trial),
review denied (Minn. Apr. 15, 1997); In re Welfare of Child of L.F., 638 N.W.2d 793, 797
(Minn. App. 2002) (reversing default judgment where neither mother nor her attorney
appeared, but stating that “counsel may substitute for the presence of parents”), rev’d, 644
N.W.2d 796 (Minn. 2002) (reinstating default judgment because the notice was adequate).
Given our decisions regarding forfeiture and prejudice, we need not address whether
counsel’s appearance satisfied the rules cited by T.T.

10
We do not review legal arguments raised for th e first time on appeal. 6 See In Re Welfare
of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) ( applying waiver rule in termination of
parental rights case); In re Welfare of S.G. , 390 N.W.2d 336, 340 -41 (Minn. App. 1986)
(applying waiver rule in child neglect case).
Second, even assuming that appellate review was proper, T.T. identifies no actual
prejudice that resulted from her absence. Without a showing of prejudice, identified errors
do not result in reversal. See Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237 N.W.2d 76,
78 (Minn. 1975) (stating that, to obtain relief on appeal, an appellant must show both error
by the district court and prejudice to the appellant arising from that error); In re Welfare of
Children of J.B., 698 N.W.2d 160, 171 (Minn. App. 2005) (applying Midway in an appeal
of TPR); In re Welfare of D.J.N., 568 N.W.2d 170, 175-76 (Minn. App. 1997) (stating that,
although “[i]t was a mistake for the trial court . . . to take judicial notice of the entire
[previous juvenile-protection] files,” because appellant failed to show prejudice, there was
no reversible error). In this case , the district court did not proceed by default in light of
T.T.’s failure to appear, but instead permitted written supplemental proposed findings.
Instead of asserting prejudice, T.T. only argues that had she appeared personally at the
hearing, she may have decided to request reopening the record, and the district court may
have granted that request. T.T. adds even more uncertainty by not explaining what
additional evidence she might have hoped to introduce. Because T.T. does not establish

6 T.T. does not claim ineffective assistance of counsel on appeal and does not make any
constitutional due process claims.

11
that the identified error prejudiced her in some way or actually impacted the subsequent
findings in some way, we conclude that there was no reversible error.
Finally, to the extent that T.T. challenges the basis for the district court’s decision
not to reopen the record, and assuming that appellate review would be proper, we conclude
that the district court acted well within its discretion in this case. The remand in this case
resulted from inadequate analysis and inadequate findings. T.T., 2019 WL 6837959, at *7.
The remand did not result from an inadequate record or erroneous admission or exclusion
of evidence. Id. Moreover, this court’s o pinion explicitly stated that the decision of
whether to reopen the record on remand was within the district court’s discretio n. On
remand, the district court heard arguments by all counsel regarding the appropriateness of
reopening the record and determined that it was unnecessary to do so. We conclude that
the district court’s refusal to reopen the record was not an abuse of discretion.
II. Factual Finding Regarding F.B.’s Preferences

T.T. argues that the district court erred in concluding that F.B. had no desire to
preserve the parent-child relationship because the district court referred to testimony that
did not occur. We conclude that the district court’s finding is not manifestly contrary to
the weight of the evidence.
Once a district court determines that the county proved at least one statutory ground
for termination or parental rights, the paramount consideration is the best interests of the
child. Minn. Stat. § 260C.301, subds. 1(b), 7 (2018); In re Welfare of Child of D.L.D., 771
N.W.2d 538, 545 (Minn. App. 2009) (“[T]he district court must consider the child’s best
interests and explain why termination is in the best interests of the child.”). Minnesota

12
Rules of Juvenile Protection Procedure, rule 58.04, explains the particularized findings that
the district court must make before ordering termination of parental rights. Minn. R. Juv.
Prot. P. 58.04 (c)(2)(ii). On appeal from a district court’s terminat ion of parental rights,
appellate courts review whether the district court’s factual findings are clearly erroneous.
D.D.G., 558 N.W.2d at 484; In re Welfare of Children of T.R. , 750 N.W.2d 656, 660 -61
(Minn. 2008) (applying this standard on appeal from a n involuntary TPR). A finding is
clearly erroneous if it is manifestly contrary to the weight of the evidence or is not
reasonably supported by the evidence as a whole. In re Welfare of S.R.K. , 911 N.W.2d
821, 830 (Minn. 2018).
In this case, the district court made the following finding regarding the child’s
interest in preserving the parent-child relationship:
With regard to the first factor, there can be a
presumption that children, generally, have an interest in
preserving the parent-child relationship. [F.B.] is old enough
to express a preference, but [B.T.] is not. It is unclear from the
record whether [F.B.] has stated a preference regarding his
mother’s parental rights being terminated. However, [the
GAL], whose testimony the Court finds credible in its entirety,
testified and the Court finds that [F.B.] has told [the GAL] that
he does not desire to return to live with his mother.

T.T. argues that this finding is contrary to the record. We disagree. First, we
examine the finding made by the dis trict court. Contrary to T.T.’s characterization, the
district court did not make any findings regarding F.B.’s preferences for termination or
permanency. Instead, the district court concluded the record was unclear in this regard.
The district court also found that F.B. expressed to the GAL a general reluctance to “return
to live with his mother.” This general reluctance could relate to a temporary placement,

13
beginning trial home visits, or moving to protective supervision as opposed to termination
of parental rights or permanency. Those concepts are not interchangeable , and we are
careful to distinguish them from one another. The pertinent question for our review is
whether the record supports the district court’s finding that F.B. was generally reluctant to
“return to live with his mother.”
While the district court’s finding refers to trial testimony of the GAL, the GAL did
not testify at trial regarding F.B.’s stated preferences. This portion of the finding is not
accurate. The record, however, is not limited to the testimony provided by the GAL, and
several exhibits support the district court’s finding that F.B. expressed a reluctance to live
with his mother in conversations with the GAL. Specifically, exhibits 5, 6, and 9, relating
to court hear ings in April, June, and July of 2018, each include findings that the GAL
conveyed F.B.’s stated preferences to the district court. In each exhibit, the district court
finds that F.B. expressed a general reluctance to visit T.T. and a preference for conti nuing
the foster placement. These exhibits support the district court’s finding that F.B. was
generally reluctant to “return to live with his mother.” We conclude that the district court
did not clearly err in reaching this factual conclusion.
III. Best Interests Analysis

T.T. argues that the district court erred in concluding that the best interests of the
children favored termination. Because the district court did not abuse its discretion when
it weighed the applicable factors, we affirm the district court’s termination decision.
As noted above, district courts are required to consider the best interests of the
children when deciding whether to order termination. Specifically, they must analyze the

14
following three factors: (1) the child’s interests in preserving the parent-child relationship;
(2) the parent’s interests in preserving the parent-child relationship; and (3) any competing
interests of the child. Minn. R. Juv. Prot. P. 58.04 (c)(2)(ii). A child’s interest in
permanency typically requires that a parent is not only capable of limited visitation with
the child, but is also capable of providing for the child’s welfare. See In re Welfare of
Children of R.W., 678 N.W.2d 49, 57 -58 (Minn. 2004). For purposes of the third factor,
competing interests “include such things as a stable environment, health considerations and
the child’s preferences.” In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). A
district court’s best interests analysis is reviewed for an abuse of discretion ; In re Welfare
of Child of K.L.W., 924 N.W.2d 649, 656 (Minn. App. 2019), review denied (Minn. Mar.
8, 2019); and we afford district courts great deference in this analysis ; see, e.g., D.L.D.,
771 N.W.2d at 546 (stating that “d etermination of a child’s best interests is generally not
susceptible to an appellate court’s global review of a record, and . . . an appellate court’s
combing through the record to determine best interests is inappropriate because it involves
credibility determinations.” (quotation omitted)).
In t his case, the district court made extensive findings regarding the competing
interests considered as part of the third factor. For instance, the district court concluded
that T.T. failed to provide a safe and stable environment by “not prevent[ing] strange and
dangerous or potentially dangerous individuals from entering her home” and that T.T. did
not engage in any of the ongoing services provided to her to obtain safe and independent
housing or change her behavior in any meaningful way. The district court also concluded
that T.T. is not presently able or willing to maintain safe, suitable housing for herself and

15
her children and that T.T.’s inability to provide safe, stable housing will continue for a
prolonged, indefinite period of time. Based on these supplemental findings, the district
court did not abuse its discretion in concluding that the children’s interests in a safe and
secure environment outweighed the other two factors.
Affirmed.