In the Matter of the Welfare of the Children of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1623

In the Matter of the Welfare of the Children of:

B. M. S., T. J. R. T., and D. A. M., Parents.

Filed June 21, 2021
Affirmed
Jesson, Judge

McLeod County District Court
File No. 43-JV-20-81

Scott L. Nokes, Glencoe Law Office, Glencoe, Minnesota (for appellant B.M.S.)

Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney,
Glencoe, Minnesota (for respondent McLeod County Social Services)

Troy Scotting, Hutchinson, Minnesota (for respondent T.J.R.T.)

Victoria Herr, Minneapolis, Minnesota (for respondent D.A.M.)

Jeff S. Jones, Pawhuska, Oklahoma (for respondent Osage Nation of Oklahoma)

Erica Mendez, Chaska, Minnesota (guardian ad litem)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant mother challenges the district c ourt’s termination of her parental rights to
her younger child and the transfer of perm anent legal and physical custody of her older

2
child. Because mother’s substantive and pro cedural due-process rights were not violated
by any deficiencies in the case plan and the county made activ e efforts to reunite mother
with her older child, we affirm.
FACTS
Appellant B.M.S. (mother) an d her two children came to the attention of McLeod
County Social Services (t he county) after law enfo rcement reported finding
methamphetamine and hair de toxifying shampoo in mother’s apartment during the
execution of a search warrant. Law enforcement placed a 72-hour hold on the children and
the county filed a child in ne ed of protection or other se rvices (CHIPS) petition for the
children.1 This was not the first time the county had interven ed. The county had filed
CHIPS petitions on two prior occasions—the first after the children’s hair follicle tests
came back positive for methamphetamine and the second after mother was involved in a
physical altercation.
Upon filing the third CHIP S petition and placing the ch ildren in foster care, the
county attempted to find and establish contact with mother. But the task proved difficult,
as she refused to disclose her location. It was not until she entered an inpatient chemical
treatment facility—several w eeks later—that the county kn ew mother’s whereabouts.
Without that information, the county had been unable to serve her with the CHIPS petition
or work with her to create a case plan to id entify a potential path towards reunification.

1 The children were not in the apartment at the time of the search, but were later found in
the care of their grandparents.

3
Shortly thereafter, the county petitioned fo r the termination of mother’s—and the
children’s respective fathers’—parental rights.
While trying to locate mother, the count y contacted the Osage Nation. Because
child 1’s paternal grandfather is a member of the Osage Nation, child 1 is eligible for
enrollment in the Tribe. As a result, child 1 is an “Indian ch ild” as defined by the Indian
Child Welfare Act (ICWA) and its state coun terpart, the Minnesota Indian Family
Preservation Act (MIFPA).2 The county was therefore required to—and did—notify the
Tribe of the proceedings.3 A tribal representative appeared by phone at three hearings early
in the case, but did not attend later hearings.4 Nevertheless, the district court continued to
reach out to the tribal representative before each hearing.
Over the next four months, mother successfully completed her inpatient treatment
program and moved into a sober living house , where she continued outpatient treatment
and received therapy for her mental health concerns. Despite mother’s progress, the county
still supported the termination of her parental rights as to ch ild 2. But because child 1’s
father had made substantial progress on his own case plan, the county amended its original
petition to terminate his and mother’s parental rights to child 1. Instead of terminating
mother’s parental rights to child 1, the county petitioned th e court for the transfer of
permanent legal and physical custody of child 1 to his father.

2 25 U.S.C. § 1903(4) (2020); Minn. Stat. § 260.755, subd. 8 (2020).
3 25 U.S.C. § 1912(a) (2020); Minn. Stat. § 260.761, subd. 2 (2020).
4 The Osage Nation also submitted an affidavit supporting the transfer of custody of child 1.

4
At trial, the district court received te stimony from mother, social workers, the
guardian ad litem, and others involved in the case. Particularly relevant to this appeal is
the testimony from one of the social worker s and mother about the case plans and the
county’s efforts to support reunification. The social worker testified to creating the initial
case plan without input from mo ther. After doing so, the so cial worker mailed a copy to
the treatment facility and deliver ed a copy to mother’s atto rney. When the mailed copy
was returned undelivered, the social worker faxed the plan to the facility. Then, to ensure
that mother understood the terms of the case plan, the social worker and mother reviewed
the plan by phone. The social worker attested to r eading each line of the case plan,
including the county’s directives that mother remain sober, complete an inpatient treatment
program, honestly acknowledg e her chemical use, and avoid contact with drug users.
According to the social worker, although mother failed to sign the initial plan, she signed
all subsequent case plans.
The social worker also identified the c ounty’s active efforts made in support of
reunification, which included providing supe rvised and unsupervised visits with the
children, referring the children to therapy, and offering mother assistance obtaining
inpatient and outpatient treatment. But mother refused the county’s assistance in obtaining
most of her treatment and instead sought admission to an inpatient treatment facility on her
own. And despite mother’s requests, the co unty did not approve overnight, weekend, or
trial home visits because of concerns over mother’s admitte d relapse while living at the
sober house, ongoing sexual abuse allegations regarding mother’s ex-boyfriend and

5
child 2, and mother’s failure to tell the count y that she ran into a different ex-boyfriend
who uses drugs.
In her testimony, mother disputed most of the social worker’s statements, telling the
court that she was “left in th e dark” about what the county expected of her to have her
children returned to her care. But mother also testified that she understood the terms of the
case plan, did not disagree with them, and was in full compliance with the plan. Nor did
she contest having signed all but the first of her case plans. Additionally, mother
acknowledged that while treatment had so far been successful, she had “a long road ahead
of [her] yet.” And despite mother’s testimony that the county did no t help her get into a
treatment facility, she did not identify how the county failed to provide adequate services
or make active efforts at reunification.
Furthermore, although the Osage Nation di d not appear at the hearing, the Tribe
submitted an affidavit from its qualified expert witness.
5 The affidavit stated that the Tribe
had been notified of the proceedings, agreed that child 1 was in need of continued
protective services and permanency, and supported the transfer of custody of child 1 to his
father, who had recently become a member of the Osage Nation.

5 A qualified expert witness is a person with specific knowledge of the Indian child’s tribe’s
culture and customs who provides testimony regarding the out-of-home placement or
termination of parental rights relating to an Indian child. Minn. Stat. § 260.755, subd. 17a
(2020). An individual’s parental rights to an Indian child may not be terminated without
testimony from a qualified expert witness that the parent’s continued custody of the child
is likely to result in serious emotional or physical damage. 25 U.S.C. § 1912(f) (2020);
Minn. Stat. § 260.771, subd. 6 (2020).

6
Based on the evidence and testimony presen ted at the hearing, the district court
terminated mother’s parental rights to child 2 and transferred permanent legal and physical
custody of child 1 to his fath er. In reaching its decision, the district court acknowledged
mother’s obvious love for her children, and their love for her. The district court also found
that the county had made active efforts at reunification as to child 1 and reasonable efforts
as to child 2 through its support of services to both mother and the children. Despite these
services and mother’s efforts to achieve the goals outlined in her case plan, the district
court found that she “has not managed to adeq uately rectify the concerns leading to the
removal of the children in the first place.” And although mother successfully completed
chemical dependency treatment and had begun to address her mental health concerns, the
district court found that “she has a long road ahead of her still, to achieving and sustaining
a genuine recovery.”
Mother appeals.
DECISION
Mother challenges the district court’s termin ation of her parental rights as to child 2
and the transfer of permanent custody of child 1, arguing that the child protection statutes,
as applied to the facts in this case, depr ive her of her substantive and procedural
due-process rights. Mother also asserts that the county di d not make active efforts to
reunify her family as required by ICWA and MIFPA. We address each argument in turn.
I. The juvenile protection statutes ar e constitutional as applied to mother.

Mother argues that her substantive and pr ocedural due-process rights were violated
by the district court’s failure to strictly a pply the requirements of the juvenile protection

7
statutes. Specifically, mother challenges the constitutionality of Minnesota Statutes section
260C.212, subdivision 1 (2020), as applied to her case, arguing that the absence of the
required signatures on the case plans and the lack of consultation with mother and the
Osage Nation in preparing the case plans violated her substantive and procedural
due-process rights.6
Whether a parent’s due-process rights have been violated in a termination of
parental rights proceeding is a question of law which we review de novo. In re Welfare of
Children of D.F. , 752 N.W.2d 88, 97 (Minn. App. 2008). Where a parent makes an
as-applied challenge to the constitutionality of a statute arguing that it violates their
substantive due-process rights, we first determ ine whether the district court applied the
correct legal framework before considering whether the st atute at issue cannot be
constitutionally applied to the facts. SooHoo v. Johnson , 731 N.W.2d 815, 824-25
(Minn. 2007).
Section 260C.212, subdivisi on 1, establishes the requirements for an out-of-home
placement plan, or case plan, in child placement proceedings. Within 30 days of placing a
child in foster care, social services agencies must prepar e a case plan detailing, among
other things, why the child has been placed in foster care and the steps to be taken to reunify
the family. Minn. Stat. § 260C.212, subd. 1(a)-(c). Case plans are prepared by the social
services agency “jointly with the parent or parents or guardian of the child and in

6 Generally, a facial challenge to the constitutionality of a statute requires the party making
the challenge to notify th e attorney general of the challenge. Minn. R. Civ. App. P. 144.
We consider mother’s appeal as an as-applie d challenge rather than a facial challenge
requiring notice to the attorney general.

8
consultation with the child’s guardian ad litem, [and] the child’s tribe.” Id., subd. 1(b).
And, “as appropriate,” the plan should be “si gned by the parent or parents or guardian of
the child, the child’s guardian ad litem, a representative of the child’s tribe, the responsible
social services agency, and if possible, the child.” Id., subd. 1(b)(3).
Our review of the record confirms that the district court applied the correct legal
framework established in section 260C.212, su bdivision 1. Prior to the termination of
mother’s parental rights, the district court periodically reviewed and approved the updated
case plans. When mother objec ted to the delay in filing the initial case plan, the court
found that “good faith efforts have been made by the co unty to develop a case plan for
[mother], including that a case plan has been created and was mailed to [mother] at her
treatment facility.” Then, in its order terminating mother’s parental rights, the district court
found that because mother refused to disclose her location to the agency, the social worker
“could not, therefore, actually work with [mot her] to create or discuss a case plan for
services.” The court also acknowledged the efforts made by the social worker to get a copy
of the case plan to mother, including mailing the document to her treatment facility, hand
delivering a copy to her attorney, and calling mother to go over the case plan before filing
the unsigned copy. And although mother di d not sign the first case plan, the court
concluded that because she si gned “every case plan e-file d since,” her arguments that
“social services didn’t do enough to communicate with her early on, or that she didn’t have
knowledge of or understand her case plans, are without merit.”
As to the Osage Nation’s involvement, th e court found that the Tribe “was notified
of every hearing, court report, case plan, and any other document that was e-filed” and that

9
the Osage Nation “participated early on in the case, chose not to participate on an ongoing
basis for a period of time, and has again pa rticipated now by supporting the placement of
child 1 with his father.” Furthermore, the court observ ed, the Osage Nation’s qualified
expert witness’s affidavit did not “note any concern about . . . the agency’s handling of the
case.” The district court also addressed th e guardian ad litem’s involvement in the case,
noting that she had been invo lved since the beginning and supported the termination of
mother’s parental rights to bo th children. By ensu ring that the intere sted parties had the
opportunity to be involved in the case plan, the district court applied the appropriate legal
framework from section 260C.212, subdivision 1.
The second part of our analysis asks whether section 260C.212, subdivision 1,
cannot be constitutionally applied to the facts in this case. Mother concedes that section
260C.212, subdivision 1, is constitutional. And she does not point to—nor does our review
of the record reveal—any other facts which suggest that the statute is unconstitutional as
applied. We conclude, therefore, that the district court’s application of section 260C.212,
subdivision 1, to mother’s case did not violate her substantive due-process rights. SooHoo,
731 N.W.2d at 820.
Mother’s procedural due-process argument is similarly unsuccessful. Procedural
due process requires “notice, a timely opportunity for a hearing, the right to counsel, the
opportunity to present evidence, the right to an impartial decision-maker, and the right to
a reasonable decision based solely on the record.” In re Welfare of Children of D.F. ,
752 N.W.2d at 97. When considering whet her a parent has been deprived of their
procedural due-process rights, this court balances: (1) the private interest affected; (2) the

10
risk of erroneous deprivation of that inte rest and the value of additional procedural
safeguards; and (3) the governmen t’s interest in the matter. Mathews v. Eldridge ,
424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976); see also In re Welfare of Children of B.J.B.,
747 N.W.2d 605, 608 (Minn. App. 2008). Th is balancing test “embodies the notion of
fundamental fairness.” In re Child of P.T., 657 N.W.2d 577, 587 (Minn. App. 2003).
Here, the private interest affected by the social worker’s preparation of the case
plans is mother’s right to parent. SooHoo, 731 N.W.2d at 820. The government has a
corresponding interest in “preserving and promoting the welfare of the child.”
Santosky v. Kramer, 455 U.S. 745, 765, 102 S. Ct. 1388, 1401 (1982). The question, then,
is whether the alleged deficien cies in the case plans create d an undue risk of depriving
mother of her fundamental right to parent and whether any add itional procedures—the
consultation of mother and the Tribe in prepar ing the case plan and the inclusion of the
relevant signatures—would have affected the outcome of the case.
Although mother did not sign the first case plan, the re cord demonstrates that she
not only received a copy of the plan and knew the requirements listed therein, but that she
also signed all subsequent case plans. As the social worker testified, copies of the case
plan were mailed and faxed to the treatment fa cility and delivered to mother’s attorney.
And the social worker and mo ther discussed each element of the plan via phone. This
procedure was fundamentally fair. Mother ha d notice of the county’s expectations and
understood the terms of the case plan. She had the opportunity to discuss the terms of the
case plan with the social worker, and did so. And, most significantly, she signed
subsequent case plans, whose terms were nearly identical to those of the initial case plan.

11
The lack of her signature on th e first case plan did not create an undue risk of depriving
her of her right to parent, nor would the presence of he r signature have changed the
outcome of the district court’s decision.7
But mother also contends that the social worker did not prepare the case plan in
consultation with the appropriate parties. We discern no support for this assertion in the
record. The guardian ad litem stated at trial that she was consulted by the social worker in
the preparation of the case plan. Mother talked through the case plan with the social worker
before it was filed. And the Tribe “was notif ied of every hearing, court report, case plan,
and any other document that wa s e-filed,” yet chose to participate in a limited manner.
Because the interested parties had the opportunity to provide input on the case plan, but
chose not to, there was no undue risk of depriving mother of her right to parent.
In sum, despite mother’s te rmination of parental rights to child 2 and the transfer of
custody of child 1, the juvenile protection statutes are constitutional as applied to mother’s
case.
II. The district court did not err by finding that the county made active
efforts to reunify mother and child 1.

Mother further argues that the district c ourt erred in terminating her parental rights
to child 2 and transferring perm anent custody of ch ild 1 to his father because the county
did not make active efforts at reunification. In particular, mother asserts that under the
juvenile protection statutes, the county’s e fforts must have included overnight visits,

7 We further note that these proceedings to ok place in the midst of the COVID-19
pandemic, which undoubtedly pr esented additional challenge s to the execution of the
typical in-person procedures for creating and reviewing case plans.

12
weekend visits, and a trial home visit. Wh ether the county was statutorily required to
provide such visits is a questi on this court reviews de novo. In re Welfare of Children of
R.W., 678 N.W.2d 49, 54 (Minn. 2004). And with regard to the district court’s findings
that the county made active efforts at reunifi cation, we apply a clear-error standard of
review. In re Welfare of Children of S.E.P. , 744 N.W.2d 381, 387 (Minn. 2008) (“Our
review of the record confirms that the district court’s findings as to the county’s efforts are
supported by substantial evidence and are not clearly erroneous.”).
Generally, before a district court terminat es an individual’s parental rights to a
non-Indian child, it must find that there is clear and convincing evidence that “reasonable
efforts” were made by the social services agency to “rehabilitate the parent and reunite the
family,” and those efforts proved unsuccessful to correct the cond itions leading to the
out-of-home placement. Minn. Stat. §§ 260.012 (defining “reasonable efforts”), 260C.301,
subd. 1(b)(5)(iv) (establishing the requirement s for the termination of parental rights)
(2020); In re Welfare of A.M.C., 920 N.W.2d 648, 655 (Minn. App. 2018). But where the
child is an Indian child, a higher standa rd applies and the court must find beyond a
reasonable doubt that the agency made “ac tive efforts” to reunify the family.
25 U.S.C. § 1912(d) (2020); Minn. Stat. § 260.762, subd. 3 (2020); In re Welfare of
Children of J.B., 698 N.W.2d 160, 165 (Minn. App. 2005).
The parties agree that child 1 is an Indi an child under both ICWA and MIFPA, and
that both statutes apply here. 25 U.S.C. § 19 03(4); Minn. Stat. § 26 0.755, subd. 8. But
because child 2 is not an Indian child, the active-efforts standard only applies to child 1.
25 U.S.C. § 1912(d) (“Any party seeking to effe ct a . . . termination of parental rights to,

13
an Indian child . . . shall satisfy the court that active efforts have been made.”) (emphasis
added); Minn. Stat. § 260.762, subd. 3 (“ A court shall not order an out-of-home or
permanency placement for an Indian child unless the court finds that the local social
services agency made active efforts to the Indian child’s fam ily.”) (emphasis added).
Despite mother’s assertions that the county failed to make active efforts with regard to both
children, we only address whether the county made active efforts with regard to child 1.8
With this in mind, we consider de novo whether overnight, weekend, and trial home
visits are required as part of a social servi ce agency’s active effort s at reunification, as
mother asserts. In re Welfare of Children of R.W., 678 N.W.2d at 54. Active efforts are
not defined within the language of ICWA itself, but federal regulations define active efforts
as “affirmative, active, thorou gh, and timely efforts intended primarily to maintain or
reunite an Indian child with his or her family.” 25 C.F.R. § 23.2 (2020). MIFPA provides
a more detailed description of what social services agencies must do to make active efforts
in child custody and placement proceedings:
“Active efforts” means a rigorous and concerted level
of effort that is ongoing thro ughout the involvement of the
local social services agency to continuously involve the Indian
child’s tribe and that uses th e prevailing social and cultural
values, conditions, a nd way of life of the Indian child’s
tribe. . . . Active efforts sets a higher standard than reasonable
efforts to preserve the family , prevent the breakup of the
family, and reunify the family.

Minn. Stat. § 260.755, subd. 1a (2020).

8 Additionally, because mother makes no a ssertion that the co unty did not make
“reasonable efforts” regarding child 2, we do not address the issue here.

14
To determine whether a social services agency met this requirement, the district
court must consider whether the agency “m ade appropriate and meaningful services
available to the family based upon that family’s specific ne eds.” Minn. Stat. § 260.762,
subd. 3. Specifically, the cour t should consider whether: (1 ) the agency made efforts as
early as possible to identify wh ether the child is an Indian child and request the relevant
Tribe’s participation in the proceedings; (2) a tribally designated representative was asked
to assist in developing a case plan; (3) the social services agency provided services to
members of the Indian child’s family, including “financial assistance, food, housing, health
care, in-home services, community support services, and specialized services” throughout
the proceedings; (4) extended family members were notified and consulted with about the
proceedings; and (5) social services arranged for visitation to occur in the home of the
Indian child’s parent, custodian, or other family whenever possible. Id.
Neither ICWA nor MIFPA, as set out above , dictate that overnight, weekend, or
trial home visits are a required part of a social services agency’s active efforts at
reunification. Underlying federal regulations establish that active efforts “are to be tailored
to the facts and circumstances of the case and may include, for example . . . supporting
regular visits with parents or Indian custodians in the most natural setting possible as well
as trial home visits of the Indian child during any period of removal, consistent with the
need to ensure the health, sa fety, and welfare of the child .” 25 C.F.R. § 23.2 (emphasis
added). Similarly, MIFPA provides that a court should consider whether a social services
agency has arranged for visitation “ whenever possible ” and “ when consistent with
protecting the child’s safety .” Minn. Stat. § 260.762, subd . 3(6) (emphasis added). In

15
short, overnight, weekend, and trial home visits are not required by statute, but
discretionary with the district court and social services agency.
Turning to the district court’s conclusi on that the county ma de active efforts at
reunification, we review for clear error. In re Welfare of Children of S.E.P. ,
744 N.W.2d at 387. A finding is clearly err oneous if it is contrary to the weight of the
evidence or unsupported by th e evidence as a whole. In re Children of T.R. ,
750 N.W.2d 656, 660 (Minn. 2008).
Here, the district court determined that the county made activ e efforts to reunify
mother with child 1. Specifically, the county made efforts
to ensure [mother] had resources to address her significant
mental and chemical health ch allenges; to ensure ongoing
contact with the children; to expand her contact with the
children as she made some progress with her case plans . . . to
ensure the children received the therapeutic help and support
they needed; to support the children’s relationship with
[child 1’s father], grandparen ts, uncles, family friends and
others; to overcome transportati on and financial barriers to
ensure visits happened even during a once-in-a-century
pandemic; [and] to work with mother and her treatment
advocate.

The record supports the district court’s conc lusion. As detailed in the social worker’s
reports to the court, the childre n were provided with foster care placement, therapy, and
child care. Mother was offered assistance to obtain inpatient services through the county,
but instead chose to seek her own inpatie nt treatment. Mother was also allowed
increasingly frequent visits w ith her children, progressing from video and phone calls to
supervised and unsupervised visits. And the county assisted with transportation for those

16
visits. As such, the district court’s findings were supported by substantial evidence and are
not clearly erroneous.9 In re Welfare of Children of S.E.P., 744 N.W.2d at 387.
Still, mother raises two related arguments to suggest that the di strict court and the
county failed to perform their duties. Neither are persuasive. First, mother contends that
the social worker’s inability to define “active efforts” sugg ests that the county could not
make such efforts. But as explained above, the record supports the district court’s finding
that the county did make active efforts towards reunifica tion, even if the social worker
could not recite this definition.
Second, mother argues that the social wo rker’s failure to immediately contact the
Osage Nation is “concerning.” But as the di strict court and the Osage Nation’s qualified
expert witness noted, the Tribe was updated on all subsequent filings, hearings, and other
actions in the case. Furthermore, the Osage Nation also participated in some of the earlier
review hearings, and when they were not present, the court made consistent efforts to
contact the tribal representative.
In sum, the juvenile protection statutes are constitutional as applied to the facts in
this case. Although no t all of the case plans were signed by mother and the guardian
ad litem, the lack of those signatures is not grounds for reversal. And while mother and

9 Mother also asserts as part of her activ e-efforts argument that the county imposed
additional, “secret” requirements that she was expected to meet. And at oral argument,
mother presented this issue as one of adequa te notice under procedural due process. We
are not persuaded by the argument under either legal theory. The case plan established an
expectation of continued so briety: “[Mother] needs to stay clean and sober.” (Emphasis
added.) And our review of the trial transcript reveals that the six-month community-based
sobriety “requirement” was not specific to mother’s case, but rather what the social worker
wants to see accomplished “in general” in termination of parental rights cases.

17
the Osage Nation do not appear to have provided input on every case plan, both had the
opportunity to do so. We also observe that while sole legal and physical custody of child 1
was transferred to father, mother retained parental rights to ch ild 1. And father indicated
at trial that he would promot e a continued relationship betw een mother and child 1, and
was “very supportive” of ongoing visitation. 10 Finally, we discern no clear error in the
district court’s findings that the county made active efforts to reunite mother with child 1.
Affirmed.

10 Although father stated that he was comfortable with the existing visitation schedule, he
was hesitant to allow overnight visits and su ggested that they be implemented “on a trial
basis.”