In the Matter of the Welfare of the Children of: A. P. and D. L., 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This opinion is nonprecedential except as provided by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
A21-0434

In the Matter of the Welfare of the Children of: A. P. and D. L., Parents.

Filed November 8, 2021
Affirmed
Slieter, Judge

St. Louis County District Court
File No. 69DU-JV-20-52

Bill L. Thompson, Law Office of Bill L. Th ompson, Duluth, Minnesota (for appellant-
father D.L.)

Kimberly J. Maki, St. Louis County Attorney, Jennifer J. Barry, Assistant County Attorney,
Duluth, Minnesota (for County of St. Louis)

Terri Ann Port Wright, Cloquet, Minnesota (for respondent-mother A.P.)

Rhoda Nagorski, Superior, Wisconsin (guardian ad litem)

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant-father challenges the involuntar y termination of his parental rights,
arguing that the county failed to prove a statut ory basis exists to support termination and
failed to make reasonable efforts to reunite the family. Appellant also contends that
termination of his parental rights was not in the best interests of the child. Because the
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child is neglected and in foster care, the county made reasonable e fforts to reunite the
family, and termination was in the child’s best interest, we affirm.
FACTS
The district court, in a March 15, 2021 order, terminated the parental rights of
appellant D.L., the noncustodial father of the child, M.L., born in February 2018. 1 In
October 2018, police in Superior, Wisconsin arrested father on outstanding warrants
following a traffic stop for suspected driving while impaired. Mother, who was also in the
vehicle, was arrested on outstanding warrants as well. M.L. was in the vehicle and was
taken into protective custody after law enforcement found drugs and drug paraphernalia in
the vehicle. M.L. was transferred to a crisis shelter in St. Louis County, Minnesota.
Out of Home Placement and Child Protection Proceedings
Mother, the child’s legal custodian, agreed to an initial voluntary-placement plan in
which M.L. would remain in mother’s custody. Following confirmed reports in early
December 2018 that mother lack ed stable housing and conti nued to use drugs in M.L.’s
presence, the county and mother agreed to a voluntary out-of-home placement.2 Following
mother’s failure to comply with her voluntary case plan, on May 16, 2019, the county filed
a petition to adjudicate M.L. in need of prot ection or services (CHIPS) and requested an
emergency protective care (EPC) hearing. Following the emergency protective care
hearing, the district court determined M.L. should remain in the voluntary-placement foster

1 The district court previously terminated the parental rights of child’s custodial mother,
A.P. This termination is not before us.
2 Only mother signed the placement plan as the custodial parent.
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home under court-ordered protective care. M. L. continued living with the same foster
parent from the initial voluntary out-of-home placement through the termination of parental
rights (TPR) trial.
Father’s Case Plan
A critical concern for the county was that father address the findings of two county
human services offices from 2005 regarding sexual maltreatment of family members.
These findings formed the basis of a requireme nt in a 2015 case plan involving one of
father’s other children that fa ther complete a psychosexual evaluation before being in a
caretaking role for children. Therefore, a ke y component in the curre nt case plan is for
father to complete a psychosexu al evaluation and this was expr essed to father in his first
visit with the social worker following his October 2018 arrest.
The county developed a case plan which required father to: 1) complete a
psychosexual evaluation, 2) complete a rule 25 assessment and follow its
recommendations, 3) consistently submit uranalysis (UA) samples demonstrating sobriety,
4) complete parenting courses, 5) address mental health issues, and 6) obtain safe housing
free of illegal substances. The district cour t adjudicated M.L. in need of protection or
services on September 30, 2019, approved the case plan, and ordered father, who remained
in custody, to comply with his case plan.

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Father’s History of Incarceration
After M.L. was placed out-of-home and the co unty began to offe r services, father
continued involvement with new arrests and incarceration from October 2018 to May 2019,
including the following:
 October 13 – mid-November, 2018: arrested and jailed in Superior,
Wisconsin;

 April 7 – 9, 2019: arrested and jailed in Duluth, Minnesota;

 May 9, 2019: arrested in Duluth, Minne sota and “accidental[ly]” released
after transfer to Hennepin County;

 May 24, 2019 - present: arrested an d jailed in Duluth, Minnesota and
ultimately imprisoned on various criminal convictions.

Termination Petition and Trial
On January 28, 2020, the county filed a petition to terminate father’s parental rights
alleging four statutory grounds for involuntary termination: (1) refusing or neglecting the
duties of the parent-child relationship, (2) pa lpable unfitness, (3) failing to correct the
conditions that led to the child’s out-of-home placement, and (4) the child is neglected and
in foster care. See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), and (8) (2020).
The district court heard te stimony from father’s parole officer, county social
workers, M.L.’s foster parent, and the guardian ad litem. Father chose not to testify. In its
termination order, the district court concluded that the county had established by clear and
convincing evidence all four alleged bases for termination, the county made reasonable
efforts to reunify the family, and it was in M.L.’s best interest to terminate father’s parental
rights. Father appeals.
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DECISION
I. The district court did not abuse its discretion in determining that the child was
neglected and in foster care, and the county made reasonable efforts to reunite
the family.

“We affirm the district court’s terminatio n of parental rights when at least one
statutory ground for termination is supp orted by clear and convincing evidence and
termination is in the best interests of th e child, provided 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) (citation omitted); see Minn. Stat. § 260C.301, subd. 7 (2020).
“[W]e will review the district court’s findings of the underlying or basic facts for clear
error, but we review its determination of whether a particular statutory basis for
involuntarily terminating pare ntal rights is present for an abuse of discretion.” In re
Welfare of Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), rev. denied (Minn.
Jan. 6, 2012). This two-part standard, reviewing findings of underlying fact for clear error
and “ultimate facts” for abuse of discretion, “i s inherent in juvenile-protection caselaw.”
Id. at 900-01. Evidence supporting termination of parental rights “must relate to conditions
that exist at the time of termination and it must appear that the conditions giving rise to the
termination will continue for a prolonged, indeterminate period.” In re Welfare of P.R.L.,
622 N.W.2d 538, 543 (Minn. 2011 ). The district court may consider the past, but the
primary consideration should be “the projected permanency of the parent’s inability to care
for his or her child.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotation
and citation omitted).

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Neglected and in Foster Care
The district court concluded that M.L. was neglected and in foster care pursuant to
Minn. Stat. § 260C.301, subd. 1(b)(8).3 Neglected and in foster care is statutorily defined
to mean a child:
(1) who has been placed in foster care by court
order; and

(2) whose parents’ circumstances, condition, or
conduct are such that the child cannot be returned to them; and

(3) whose parents, despite the availability of needed
rehabilitative services, have faile d to make reasonable efforts
to adjust their circumstances, condition or conduct, or have
willfully failed to meet reasonable expectations with regard to
visiting the child or providing financial support of the child.

Minn. Stat. §260C.007, subd. 24 (2020). It is undisputed that M.L. was placed in foster
care by court order and so we now review the second two prongs of the definition.
When the court determines a child is neglec ted and in foster care, it must consider
a number of factors including “the effort th e parent has made to adjust circumstances,
conduct, or conditions that nece ssitates the removal of the child to make it in the child’s
best interest to be returned to the parent’s home in the foreseeable future, including the use
of rehabilitative services offered to the parent ” and “the nature of the efforts made by the
responsible social services agency to rehab ilitate and reunite the fa mily and whether the

3 If this court affirms the district court’s determination that one statutory basis to terminate
parental rights is present, the court need not address other statutory bases found by the
district court. S.E.P., 744 N.W.2d at 385. Here, we affirm the district court’s determination
that M.L. was neglected and in foster care . Therefore, we do not consider the other
statutory bases addressed by the district court.
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efforts were reasonable.” Minn. Stat. § 260C.163, subd. 9(2), (7) (2020). “[T]he nature of
the services that constitute reasonable effo rts depends on the problem presented.” In re
Child. of T.R., 750 N.W.2d 656, 664 (Minn. 2008) (quotation omitted).
Shortly after father’s October 2018 arrest, the county first discussed with father the
conditions he needed to address before M.L. could be returned to him. The county’s
primary goals for father were “[c]ompletio n of a psychosexual [evaluation], a Rule 25
[assessment], [and] maintaining sobriety,” as well as completing a parenting evaluation
and addressing his mental health. Following father’s release from jail in November 2018,
he did not have stable housing, so the county offered him services to help him find stable
housing. The record supports the district court’s factual findings that the conditions
outlined at the first meeting remained the county’s concern throughout the CHIPS and TPR
proceedings, forming the core of the court-ordered case plan.
Father argues that he has not been able to work on the plan requirements while in
custody. However, even when not in custody as the district court found, during the period
from November 2018 to May 2019, father did not cooperate with the social worker to
address the conditions leading to M.L.’s out-of-home placement. He vacillated regarding
his willingness to complete a psychosexual evaluation and u ltimately refused, telling the
social worker he did not need the evaluation and suggested the victims would recant. He
declined assistance to find stable housing, did not complete UAs, did not complete a
parenting assessment, did not complete a rule 25 assessment, and did not address his mental
health. Throughout this period, the social worker had difficulty contacting father and father
missed arranged visits with M.L. Father was arrested and charged in April 2019 for illegal
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firearm possession, which he pleaded guilty to in July 2019 and was sentenced to a prison
term with an anticipated release date in September 2022. He has been incarcerated through
the entire CHIPS and TPR proceedings.
While in custody, father only “on occasion” expressed interest in, and asked about,
M.L. He was disruptive and th reatened jail staff and their families, which prevented him
from being able to access programming that wo uld have satisfied hi s plan. He did not
attempt to communicate with M.L. by sending letters, gifts, or any other items. The only
element of his case plan father ultimately complied with was comp letion of a rule 25
assessment, which was arrange d by his probation officer fo llowing his arrests in April
2019.
The district court found that father “failed to make reasonable efforts to adjust [his]
circumstances, condition or conduct,” thus preventing M.L. from being placed in his care
“now, or in the foreseeable future.” The record support s these factual findings and,
therefore, the district court did not abuse its discretion by concluding that M.L. is neglected
and in foster care.
Reasonable Efforts
A court conducting TPR proceedings “shall make findings and conclusions as to the
provision of reasonable efforts.” Minn. Stat . § 260.012(h) (2020). “[P]rovision of
reasonable efforts must be evaluated by the court in every case.” S.Z., 547 N.W.2d at 892.
However, a detailed analysis of the factors set out in Minn. Stat. § 260.012(h) is not always
required. J.R.B., 805 N.W.2d at 904. The district court’s findings that the county provided
reasonable efforts to reunite the child with father are supported by the record.
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Before father’s incarceration, the coun ty provided referrals for a psychosexual
evaluation and rule 25 assessment, provided information about co mpleting UAs, offered
transportation to testing, set up alternative testing opportunities, offered phone minutes and
a cell phone, and offered assistance finding stable housing. Once father was incarcerated,
the county inquired of these facilities about programming for father as he moved between
jails in Douglas County, Wisconsin and St. Lo uis County, Minnesota; and prisons in St.
Cloud and Faribault, Minnesota. As found by the district court, father’s improper conduct
in these facilities often prevented him from being eligible for these programs. The county
also provided photos of M.L., encouraged father to write to M.L., and attempted to set up
remote visits. Father did not take advantage of these efforts.
“[A] case plan that has been approved by the district court is presumptively
reasonable.” S.E.P., 744 N.W.2d at 388. If a parent believes an aspect of the case plan is
unreasonable, the proper remedy is to seek modi fication of the plan, not cease efforts to
comply. Id. Although father now argues that his plan should have been modified because
he was incarcerated, father did not request modification; he simply did not comply.
In sum, the record supports the district court’s conclusion that M.L. is neglected and
in foster care despite the county’s reasonable efforts to reunite father with child, which are
summarized by the district court as follows:
[father] has made no efforts to reunify with [M.L.]. It
has been shown he is unwilling, despite be[ing] capable, to
address the ongoing concern of the substantiated finding of
sexual abuse made against him. He continues to engage in
criminal behavior, resulting in lengthy incarceration rendering
him unable to provide care for [M.L.]. While not incarcerated,
[father] has not shown an ability or willingness to make an
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effort to reunify with [M.L.]. While incarcerated, he has not
shown a willingness to maintain a relationship with [M.L.].

II. The district court did not abuse its discretion in determining that termination
of father’s parental rights was in the best interests of the child.

“Even when statutory grounds for termin ation are 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). In analyzing the best interests of the child,
the district court must consider “(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 interest of the child.” In re Welfare of R.T.B. , 492 N.W.2d 1, 4 (Minn. App.
1992); see Minn. R. Juv. Prot. P. 58.04(c)(2)(ii). “Competing interests include health
considerations, a stable environment, and the child’s preference.” J.K.T., 814 N.W.2d at
92. “[T]he best interests of the child must be the paramount consideration” and “[w]here
the interests of parent and child conflict, the interests of the child are paramount.” Minn.
Stat. § 260C.301 subd. 7. On appeal, appellate courts “rev iew a district court’s ultimate
determination that termination is in a child’s best interest for an abuse of discretion.”
J.R.B., 805 N.W.2d at 905. Additionally, “[b]ecau se the best-interests analysis involves
credibility determinations and is generally no t susceptible to an appellate court’s global
review of a record, we give considerable deference to the district court’s findings.” J.K.T.,
814 N.W.2d at 92 (quotation omitted). Here, the district court made sufficient factual
findings to support its determination that termination is in M.L’s best interest.
The district court acknowledged that “[i]t is always preferable for a child to preserve
a parent-child relationship” and father had “at the very least, shown a desire to preserve his
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child-parent relationship with [M.L.].” Howe ver, father was “incarcerated, resulting in
him being voluntarily, completely unable to care for [M.L.] until September, 2022,” and
when given “the opportunity to maintain contact with [M.L .] through letters, cards, and
drawings, . . . [father] has failed to do even that.” These findings are supported by the
record.
Father’s failure to take advantage of the available opportunities to connect with
M.L. undermines his claim that a lack of a bond between he and M.L. is due to inadequate
opportunities. Moreover, the record indicates, as the district court found, the competing
interests of M.L., such as her need for “a sa fe, stable environment that meets her special
needs and provides her with stability and care,” outweigh father’s interest in maintaining
his relationship with the child. At the time of the TPR trial, M.L. had been placed out-of-
home with the same foster parent from th e time she was nine months old until she was
nearly three years old. M.L. has bonded with the foster parent, who credibly testified that
she was committed to providing for the child’s needs and want ed the child “to have the
best life that she can have.”
After M.L. had been placed out-of-home, father committed new crimes leading to
incarceration. Father did not take steps as required by his plan and, while incarcerated,
father behaved in ways that prevented hi m from accessing programming for his plan and
made negligible progress on any of the steps. The district court found father “completely
unable to care for [M.L.] until September, 2022” because of his incarceration and that his
consistent failure to engage with his plan indicates he would be unable to provide M.L. the
appropriate care when he is released.
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Father alleges no error in the district c ourt’s credibility determinations and the
record supports the district court’s factual fi ndings that M.L.’s intere st in “a safe, stable
environment that meets her special needs and provides her with stability and care”
outweighs father’s interest in preserving the relationship. Therefore, the district court did
not abuse its discretion in concluding that termination of father’s parental rights is in M.L.’s
best interests.
Affirmed.