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

This opinion is nonprecedential except as provided by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
A21-0167

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

Filed August 23, 2021
Reversed
Slieter, Judge

Olmsted County District Court
File No. 55-JV-20-971

Natalie Netzel, Brooke Beskau Warg, Tara Baker (certified student attorney), Mitchell
Hamline School of Law, St. Paul, Minnesota (for appellant R.N.)

Mark A. Ostrem, Olmsted County Attorney , Debra A. Groehler, Assistant County
Attorney, Rochester, Mi nnesota (for respondent Olmsted County Health, Housing, and
Human Services)

Janet H. Krueger, Assistant Public Defe nder, Rochester, Minnesota (for respondent
M.D.W.)

Vicki Duncan, Rochester, Minnesota (guardian ad litem)

Considered and decided by Worke, Presidi ng Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant R.N. (grandmother) challenges the district court’s termination of her
third-party custodial rights to M. W. as part of its order term inating the parental rights of
M.W.’s parents. Because we agree that the statute relied upon by the district court does
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not confer upon it the authority to terminate grandmother’s third-party-custodial rights, we
reverse that portion of the district court’s order.
FACTS
The child, M.W., was born April 7, 2006 , and placed in the custody of his
grandmother at the age of three in 2009. See Minn. Stat. § 257C.07 (2020) (addressing
custody consent decrees). Based on the parents’ abandonment of M.W., grandmother was
granted full legal and physical custody of M.W. in a family court proceeding. In March
2019, respondent Olmsted County Human Se rvices (the county) filed an emergency-
protective-care petition, alleging that M.W., then 13 years old, was in need of protection
or services due to the inability of his custodian, grandmother, to adequately and
appropriately provide for his needs.1 The county subsequently filed a petition alleging the
child to be in need of protection or services (CHIPS), asserting that grandmother had failed
to adequately care for the ch ild. M.W. was adjudicated CH IPS following a trial on July
11, 2019, based on findings that M.W. “ha[d] been a victim of phys ical abuse” and was
“without proper parental care be cause of the emotional or physical disability, or state of
immaturity of his parent, guardian or other custodian [i.e. grandmother].”
Grandmother agreed to an out-of-home-pl acement plan for the child on July 17,
2019, by which the county would continue to place the child outside of his home. On
October 30, 2019, the district court appr oved a trial home visit between M.W. and

1 Though numerous parties were involved in this matter in the district court, including the
county, the child’s guardian ad litem (GAL), and the child, the only parties participating
on appeal are grandmother and the county.
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grandmother. The trial home visit was te rminated on December 23, 2019, following
reports of additional aggr essive behaviors by M.W. towards grandmother and
grandmother’s inability to appr opriately parent him or regu late his behaviors without
causing further escalation.
Subsequent to the termination of the tr ial home visit, the county filed a petition to
terminate the parental rights of M.W.’s noncus todial parents, and also asking that “the
order [granting grandmother custody of M.W .] be terminated in conjunction with the
parents’ parental rights to [M.W.] so he will be able to be adopted.” The portion of the
petition seeking to terminate of the parental rights of M.W.’s non-custodial parents noted
that M.W.’s parents had previously been found to have abandoned M.W. During trial, the
district court received testimony from grandmother, M.W., the child’s guardian ad litem,
the child protection worker, and a parenting educator. The GAL, child-protection worker,
and parenting educator all testified that they had concerns regarding grandmother’s ability
to care for M.W. These concerns largely revolved around grandmother’s inability to avoid
escalation of conflicts between herself and M.W., which had several times in the past
resulted in either grandmother’s physical discipline of M.W. or physical violence between
grandmother and M.W. The concerns also in cluded grandmother’s inability to deal with
M.W.’s mental-health diagnoses, which include d attention-deficit-hyperactivity disorder,
reactive-attachment disorder, oppositional-defiance disorder, and depressive disorder. The
professional witnesses all opined that grandm other had failed to appropriately adapt her
parenting style to meet the needs of M.W. despite the county’s e fforts. Grandmother
testified that she desired to continue her custody of M.W. despite these concerns.
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On January 20, 2021, the district court issued an order terminating the parental rights
of M.W.’s parents pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2) (2020), based on its
finding that they had “substan tially, continuously, or repeated ly refused or neglected to
comply with the duties imposed upon [them] by the parent and child relationship.” The
district court also found that “the best interests of [M.W.] are best served through
termination of the custodial rights of [grand mother] . . . in favor of a grant to the
Commissioner of Human Services.” The dist rict court “terminate[d]” grandmother’s
custodial rights and ordered guardianship of M.W. to the Commissioner of Human
Services. The district court cited Minn. St at. § 260C.325 (2020) as its authority to
terminate grandmother’s custodial rights. Grandmother appeals.
DECISION
The sole issue for our consideration is the propriety of the district court’s
termination of grandmother’s custody of M.W.2 Grandmother argues that the district court
erred by concluding that Minn. Stat. § 260C .325 conferred upon it the authority to
terminate her third-party-custodial rights of M.W. 3 We review the district court’s
interpretation of statutes de novo. In re Welfare of R.S., 805 N.W.2d 44, 49 (Minn. 2011).
Additionally, for purposes of th is appeal, we assume without deciding that whether to

2 Both parents failed to respond to the petiti on to terminate their parental rights and the
district court proceeded agains t them by default. The parent s remain uninvo lved in this
matter on appeal, and the portion of the order terminating their parental rights is not the
subject of this appeal.
3 Grandmother additionally argue s that the district court er red when it issued an order
permitting the county to cease its efforts to reunify her and M.W. However, grandmother
did not raise this issue in the district court, and we decline to consider it for the first time
on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
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terminate the custody obtained by a person through a custody consent decree, is
discretionary with the district court. Cf. In re Welfare of Child of R.D.L., 853 N.W.2d 127,
136 (Minn. 2014) (stating that whether to terminate parental rights “is always discretionary
with the [district] court.”). Misapplicatio n of the law is an abuse of discretion. In re
Adoption of T.A.M., 791 N.W.2d 573, 578 (Min n. App. 2010). We agree that the district
court erred by concluding that section 26 0C.325 provided it auth ority to terminate
grandmother’s third-party custody rights.
In relevant part, section 260C.325 states:
When the court terminates parental rights of both parents or of
the only known living legal pare nt, the court shall order the
guardianship of the child to . . . the commissioner of human
services.
. . . .
A guardian appointed under this section has legal custody of
the child and the right to visit the child in foster care, the
adoptive placement, or any othe r suitable setting at any time
prior to finalization of the adoption of the child.

Minn. Stat. § 260C.325, subds. 1(a)(1), 4. The district court reasoned that upon termination
of the parents’ parental rights it was required by section 260C.325 to appoint the
commissioner of human services as M.W.’s gua rdian as a result of its termination order.
The district court additionally concluded that it had “original and exclusive jurisdiction”
over the child, who had previously been found to be in need of prot ection or services.
Therefore, the district court concluded, the previous family court order would be required
to “defer” and “submit to th[e] original and exclusive jurisdiction of the juvenile court,”
which would necessarily result in “terminat[ ion] [of] the family court’s custody to
[grandmother].” The district court found that such a termination was in the best interests
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of M.W. and, citing section 260C.325 as the authority for doing so , “terminat[ed] [] the
custodial rights of [grandmother] granted to her . . . in favor of a grant to the Commissioner
of Human Services.” Grandmother argues th at “terminating custodial rights is not a
concept recognized under Minnesota law.”
“If a statute’s language is clear and unambi guous, a reviewing court must give effect
to its plain meaning.” In re Welfare of Child of SSW, 767 N.W.2d 723, 727 (Minn. App.
2009). Section 260C.325 provides no justifica tion for the district court’s order regarding
grandmother. It is silent re garding the custodial rights of third parties and, therefore,
provides no justification for the district court’s termination of such rights.
4 Misapplication
of the law is an abuse of discretion. See T.A.M., 791 N.W.2d at 578. The district court’s
order terminating appellant’s custodial rights was an abuse of discretion.5
Regardless, because the termination of the parental rights of M.W.’s parents is not
challenged on appeal, that portion of the district court’s order remains in effect. As a result
of the district court’s order terminating thei r parental rights, it correctly applied section

4 Notably, section 260C.325 does not even dispose of the custodial rights of parents—the
custodial rights of parents whose parental rights have been terminated is addressed through
Minn. Stat. § 260C.317 (2020), which states that “[u]pon the termination of parental rights
all rights . . . including any rights to custody . . . existing between the child and parent shall
be severed and terminated.”
5 The county cites to the holding of Stern v. Stern, 839 N.W.2d 96 (Minn. App. 2013), as
justification for the district court’s order. However, though Stern did examine the authority
of a family court to consider third-party cust ody relative to the juvenile court, the third
party in Stern was simultaneously seeking custody of the child in both family and juvenile
court. Stern, 839 N.W.2d at 98-99. In this matter, grandmother had already obtained full
legal and full physical custody of M.W. 12 years prior to the county’s TPR petition. Stern
is therefore inapposite.
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260C.325 and appointed the commissioner of human services as M.W.’s guardian.6 Minn.
Stat. § 260C.325, subd. 1(a)(1). “A guardian appointed under [section 260C.325] has legal
custody of the child.” Id., subd. 4(a). “‘Legal custody’ means the right to the care, custody,
and control of a child.” Minn. Stat. § 260C.007, subd. 22 (2020). Thus, though Minn. Stat.
§ 260C.325 does not confer authority on the district court to formally terminate a transfer
of custody made in a prior custody consent decree, it does require the district court to issue
an order that functionally displaces a prior transfer of custody occurring in a custody
consent decree. In this context, we note that the award to the commissioner of legal custody
of M.W. as “legal custody” defined by Minn. Stat. § 260C.007, subd. 22— i.e., the award
to the commissioner of the right to make decisions regarding the care, custody, and control
of M.W. pending his adoption—is not necessar ily inconsistent with the custody consent
decree to the extent that the commissioner pl aces the child with grandmother. But the
propriety of any such placement is not addressed by this record and we express no opinion
on the point.

6 Minn. Stat. § 260C.325, subd. 1(b), indicates that “[t]he court shall order guardianship of
the child to the commissioner of human services when the responsible county social
services agency had legal responsibility for pl anning for the permanent placement of the
child and the child was in foster care,” as was the case here (Emphasis added.). See DSCC
v. Simon , 950 N.W.2d 280, 289 (Minn. 2020) (noting that a statute’s use of “shall” is
mandatory); see also Minn. Stat. § 645.44, subd. 16 (2 020) (stating that “‘[s]hall’ is
mandatory”); but cf. Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 541
(Minn. 2007) (addressing when a statute’s us e of “shall” is only directory, and not
mandatory).
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In summary, though we reverse the distri ct court’s order terminating grandmother’s
third-party custodial rights, the January 20, 20 21, order of the distri ct court terminating
parental rights and ordering guardianship of M.W. remains effective.
Reversed.