A20-0820

This opinion will be unpublished and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
A20-0599
A20-0820

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

Filed October 26, 2020
Affirmed
Ross, Judge

Lyon County District Court
File No. 42-JV-19-129

Amie Ascheman, Runchey, Louwagie & Wellman, PLLP, Marshall, Minnesota (for
appellant D.A.)

William J. Toulouse, Quarnstrom & Doering, P.A., Marshall, Minnesota (for a ppellant
B.T.)

Richard R. Mae s, Lyon County Attorney, Nicole A. Springstead, Assistant County
Attorney, Marshall, Minnesota (for respondent Southwest Health and Human Services)

Shanna Latterell, Redwood Falls, Minnesota (guardian ad litem)

Considered and decided by Bryan , Presiding Judge; Ross, Judge; and Bjorkman ,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Child-protection workers in Texas and later in Minnesota removed two children
from their parents’ care after learning the parents were using illegal drugs and neglecting
the children. The district court determined that the children needed protection or services,
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and it adopted case plans to curb drug and alcohol misuse and child neglect. Lyon County
human services petitioned the district c ourt to terminate parental rights based on the
parents’ alleged failure to comply with the plans, after which the district court terminated
mother’s rights voluntarily and father’s rights involuntarily. Because the record supports
the district court’s finding that undue duress did not cause mother to voluntarily terminate
her rights and also demonstrates that it acted within its discretion by terminating father’s
rights, we affirm.
FACTS
This parental -rights case involves B.T. (mother) and D.A. (father) , w ho are the
unmarried parents of two children born in Texas in 2013 and 2014. Texas child-protection
officials learned that the parents were misusing drugs and alcohol , and they therefore
removed the children in July 2014. The officials returned the children after a period unclear
from the record following the parents’ participation in chemical-dependency treatment and
parenting classes.
The parents moved between states and faced criminal charges leading to their serial
incarceration. They first relocated to Chicago, where police arrested mother on warrants.
Then father moved back to Texas with the children and eventually to North Dakota, where
he turned himself in on arrest warrants at about the time of mother’s release fro m jail.
Mother’s crimes included domestic assault, while father’s included child endangerment
and felony drunk driving. Mother moved with the children to Minnesota , and father
remained in prison.
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Acting on behalf of Lyon County, Southwest Health and Human Services removed
the children from mother’s care in May 2019 following reports of her drug and alcohol
misuse, child neglect, and child maltreatment. The district court concluded that the children
were in need of protection or services and placed the m into foster care. The county’s
human-services staff developed separate case plans for mother and father, and the district
court adopted each plan . Mother’s case plan directed her to services to address chemica l
dependency and mental -health issues, while father’s directed him to prison services
available to address parenting deficiencies and chemical dependency.
The county petitioned the district court to terminate both parents’ parental rights
about eight months into their case plans. The county based its petitions on four statutory
grounds: that mother and father refused to comply with their parental duties, that mother
and father are palpably unfit to parent, that reasonable efforts had failed to correct th e
conditions that led to out-of-home placement, and that the children were neglected and in
foster car e. See Minn. Stat. § 260C.301, subds. 1(b)(2), (4), (5), (8) (2018). Mother
submitted an affidavit voluntarily terminating her parental rights, and father challenged the
petition in a termination trial. The district court received testimony from mother, a social
worker, and the children’s guardian ad litem. Father, still imprisoned, also testified.
Mother orally confirmed her written consent to voluntarily t erminate her parental
rights without a trial, adding her preference “ that the relatives are first to adopt.” The
district court responded by advising mother that, although relatives will be considered first,
“there may or may not be circ umstances that would it make in appropriate to allow [a]
relative to adopt the children.” Mother then replied that she wanted to “go ahead” with the
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voluntary termination of her rights anyway. She acknowledged expressly that, in agreeing
to the district court’s terminating of her parental rights, she was “not promised anything as
far as the children and where they’re ultimately placed.” The district court accepted
mother’s voluntary termination.
Mother also testified about the county’s petition to terminate father’s parental rights.
She said that she had spoken with him “from time to time” during his imprisonment but
that the children had not seen or spoken with him. She also said that he had provided no
child support.
The social worker assigned to the case corroborated mother’s accounting that father
had no contact with the children between his imprisonment and their removal from
mother’s care. She opined that it would not have been in the children’s best interest for
father to contact the children directly under the circ umstances. And she explained that
father had not asked her to send the children any cards, gifts, or money through her. The
social worker expressed her doubts that father could properly care for the children in light
of his criminal convictions, including child endangerment.
The children’s guardian ad litem testified similarly. And she added that she doubted
that father could parent the children or meet their daily needs. She opined that terminating
his parental rights served the children’s best interests.
Father testified opposing termination of his parental rights. He disputed the county’s
allegations that he failed to participate in parental and chemical-dependency classes while
incarcerated. He also disputed whether it is in the children’s best interests to terminate his
parental rights. He claimed that he had been in contact with the children while incarcerated
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but conceded that he had not seen the children since September 2016. He also stated he
planned to return to North Dakota after his release in July 2020 to live with a relative.
The district court issued two termination orders. It terminated mother’s parental
rights based on her voluntary decision. It terminated father’s parental rights, finding that
he is palpably unfit to parent and that reason able efforts failed to correct the reasons for
out-of-home placement, but it rejected the other two statutory bases alleged by the county.
The district court concluded that the county made reasonable efforts to reunify the children
with father and that termination is in their best interests.
Mother then sought to rescind her voluntary termination decision. She moved the
district court to amend its findings to conclude that duress caused her to agree to terminate
her parental rights, arguing primarily that she had believed that termination of her rights
would result in a family member adopting the children. She argued alternatively that the
county had failed to make reasonable efforts to reunify the children with her.
The district court denied the motion. Both parents have separately appealed, and we
now answer their consolidated appeals in this opinion.
D E C I S I O N
We first address mother’s challenge to the voluntariness of her decision to terminate
her parental rights. The district court could not properly terminate mother’s parental rights
on her agreement unless clear and convincing evidence established that , for good cause,
mother desired to terminat e her rights and termination is in the children’s best interests.
See Minn. Stat. § 260C.301, subds. 1(a), 7 (2018). Mother challenges the district court’s
finding that termination is in the children’s best interests only in conclusory fashion without
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argument. She argues instead that the district court should have granted her motion to
amend the findings so as to conclude that she did not really voluntarily terminate her
parental rights because she agreed to the termination only u nder duress. She also argu es
that, notwithstanding the ruling on her motion for amended findings, the district court
clearly erred by originally finding that her decision to voluntarily terminate her parental
rights was of her own accord rather than based on duress. Her argument fails.
We can address both arguments at once. Mother’s assertion that the district court
should have amended its findings by accepting her duress claim is unconvincing, and so is
her assertion that the district court clearly erred by originally finding that her decision was
voluntary. We will not reverse a district court’s order denying a posttrial motion for
amended findings absent a clear abuse of discretion. Zander v. Zander , 720 N.W.2d 360,
364 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006). And we will not reverse its
original fact-finding absent clear error. In re Welfare of J .R.B., 805 N.W.2d 895, 901
(Minn. App. 2011), review denied (Minn. Jan. 6, 2012). The record belies mother’s implied
claim of abuse of discretion and clear error. The record reveals that she informed the district
court by affidavit that she was consenting to terminate her parental rights voluntarily. She
informed the district court that she did not condition her consent on the children being
adopted by a family member. And she confirmed her consent to the district court, expressly
aware that the children might be adopted by a nonrelative. Mother identifies no fact on
which the district court must have, let alone might have, originally found that she was
acting under duress. And she identifies no circumstance on which the district court was
compelled to accept her after- the-fact claim of duress. Having been advised by mother
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through her sworn affidavit and oral testimony that she was terminating her parental rights
voluntarily, the district court did not clearly err by so finding or abuse its discretion by
leaving the challenged finding intact.
Mother also contends that the county failed to take appropriate account of cultural
circumstances when it placed the children in foster care. Because this contention is
irrelevant to the later termination of mother’s parental rights, we do not address it in this
termination appeal. We turn to father’s arguments.
Father contests the district court’s decision to terminate his parental rights
involuntarily. We will affirm a district court’s termination decision if clear and convincing
evidence supports the statutory ground for termination and termination is in the best
interests of the children, provided that the county has made reasonable efforts to reunite
the family. In re W elfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008) ; see
also Minn. Stat. § 260C.301, subd. 7 (2018). We focus our discussion on father’s only
argument, liberally construed, which is that the district court errantly found that the county
made reasonable efforts to reunify him with the children. We say liberally construed
because one might read father’s argument as a challenge to the content of the case plan for
allegedly having failed to satisfy the statutory requirements —an argument that father
would have forfeited for having failed to raise it below. See Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988). But we are satisfied that he more broadly challenge s whether the
county undertook reasonable efforts to reunify him wit h the children, and the responsive
briefing corroborates our understanding.
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So understood, f ather’s limited challenge faces a deferential review standard. We
generally review a district court’s order terminating parental rights for an abuse of
discretion. In re Welfare of Child R.D.L., 853 N.W.2d 127, 136–37 (Minn. 2014). But we
review only for clear error a district court’s finding that the county made reasonable
reunification efforts. In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995). Father’s
argument has some merit, but under this standard it fails to lead us to reverse.
Father argues that the county should have arranged for at least telephonic visits
between him and the children during his imprisonment. The argument has su rface appeal
because it is self- evident that contact between parent and child is necessary for
reunification. The only reason given by the county for not having arranged this contact is
the social worker’s belief that father’s lack of recent contact with the very young children
would have made new contact with the m improper, and the district court accepted this
conclusion as a matter of fact. But no one testified why this is so, and neither the district
court’s termination order nor the county’s brief on appeal offers any explanation for the
conclusory assertion. Father’s argument is ultimately unavailing, however, because it is
not the county’s duty to create a relationship between father and children where none exists,
In re Welfare of Children of R.W. , 678 N.W.2d 49, 56 (Minn. 2004) (explaining that the
county must preserve existing relationships that are in the children’s best interests), and no
evidence suggests that father took the initiative during his i mprisonment to locate or
communicate with t he children in any fashion. T he record establishes that father had no
relationship with the children after his incarceration at any point before or after the county
removed them from mother’s care . Father therefore has failed to identify any ground on
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which the district court was bound to find unreasonable the county’s failure to initiate the
contact that he had failed to establish on his own.
The county did make some effort toward reunification. For those efforts to be
reasonable, they must be “(1) relevant to the safety and protection of the child; (2) adequate
to meet the nee ds of the child and family; (3) culturally appropriate; (4) available and
accessible; (5) consistent and time ly; and (6) realistic under the circumstances.” Minn.
Stat. § 260.012(h) (2018). And for a noncustodial parent, like father, the county must assess
the parent’s ability to provide day -to-day care for the child and, if necessary, provide
services to enable him to p rovide that care. Minn. Stat. § 260.012(e)(2) (2018). Although
a parent’s incarceration by itself does not warrant termination of parental rights or eliminate
the county’s duty to provide reasonable reunification efforts, incarceration creates
complications that may affect what qualifies as reasonable. In re Welfare of A .R.B.,
906 N.W.2d 894, 899 (Minn. App. 2018). It is true, as father maintains, that the county’s
efforts here were not overwhelming. But we believe the record supports the district court’s
finding that they were reasonable under the circumstances.
The district court identified the county’s efforts and found them reasonable. The
district court found that the county had discussions with father about the case plan and his
future plans upon release from prison . It also found that the county researched online
parenting classes for father and discussed them with father’s caseworker. In addition to
finding these efforts reasonable, the district court also implicitly found that additional
efforts would be futile, stating that “there was nothing else [the county] could do to foster
reunification.” On his part, father had not described for the county or identified for the
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district court any factually supported plan to secure stable and safe housing for the children
or otherwise provide for their needs on his eventual release from prison. He had suggested
that he might live with a relative and that the children could join him there, but the district
court was unpersuaded because he had failed either to explain how those living conditions
would be suitable for the children or to demonstrate that he had developed this possibility
into an actual plan corroborated by the named relative. Aside from complaining about the
county’s failure to initiate contact between father and the children, father identifies no
omitted, reasonable effort that would have made reunification feasible.
Father raises other arguments on appeal, but he raised none of them in the district
court. We generally will not c onsider issues neither presented to nor considered by the
district court. Thiele, 425 N.W.2d at 582. Because father presented these arguments for the
first time on appeal, we will not address them.
Affirmed.