In the Matter of the Welfare of the Child of: M. L. H., Parent.

This opinion is nonprecedential except as provided by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
A21-0438

In the Matter of the Welfare of the Child of: M. L. H., Parent.

Filed October 18, 2021
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-JV-19-2365

Anne M. Carlson, Anne M. Carlson Law Office, PLLC, St. Paul, Minnesota (for appellant,
M.L.H.)

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for responde nt Hennepin County Health and Human
Services)

Ellen Murphy-Fritsch, E. Murphy Law Office, PLLC, White Bear Lake, Minnesota (for
mother)

Elizabeth Eckholm, Guardian ad Litem, Minneapolis, Minnesota

Considered and decided by Smith, Tracy M. , Presiding Judge; Bjorkman, Judge;
and Hooten, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
On appeal from the termination of his parental rights, father argues that the record
does not support the district court’s conclusion that termination is in the best interests of
the child and that the district court failed to address the circumstances existing at the time
of trial. We affirm.
FACTS
On March 12, 2018, the state charged appellant father with promoting the
prostitution of a minor after it received a tip from an informant that he was involved in the
posting of commercial sex ads for a 17 -year-old victim. The informant provided police
with the victim’s phone number and officers later discovered the number in multiple
prostitution ads on commercial sex websites.
Leading up to the charge, an undercover officer had contacted the phone number
listed in the commercial sex ad and negotiated a meeting with the victim for $700 on or
about March 8, 2018. The victim directed the officer to a hotel and, when he arrived, a
surveillance team of other officers observed father at the hotel and found messages related
to the commercial sex ad on father’s phone. Police also spoke with a witness who stated
that the victim was involved in “commercial sex and that she had been selling herself since
she met” father. The witness further maintained that father ordered the victim to post ads
on the commercial sex ad website and that both father and the victim would communicate
to people who responded to the ads. But father demanded half of the money the victim
earned. Other statements indicated that father “was slaving [the victim] and making her
stay up for days without eating.” Based upon this information, father was arrested and
placed in jail.
On August 8, 2018, father pleaded guilty to the charge and a conviction was entered
on September 9, 2018. The district court sentenced father to 78 months in prison for the
promotion of prostitution offense to be served with a concurrent sentence of 29 months for
an unrelated aggravated robbery offense. Father is currently incarcerated and is scheduled
to be released in July 2022.
Because the victim in the promotion of prostitution offense was a minor, Hennepin
County Social Services opened a child protection investigation related to the victim of that
offense. On August 23, 2018, just a few weeks after he had pleaded guilty to the charge of
promoting prostitution, county staff interviewed father. He acknowledged that he had
previously dated the victim and he claimed that he was aware that she had been prostituting
herself. But he denied the allegations in the criminal complaint that he had been promoting
prostitution and claimed no involvement in the victim’s commercial sex activities. He
alleged that she would arrange her own dates, often through social media websites, and that
“he would just take her [to] the places that she told him to go.” He denied that he was
“pimping [the victim out],” stating that the victim took his phone and posted commercial
sex ads online and arranged her own hotel rooms. And he stated that he only pleaded guilty
to the charge “because he did not want [the victim] to lie about him while testifying because
that would make him look worse.” But he admitted that he was at the same hotel as the
victim and argued that he was leaving to sell marijuana to a third party. As a result of its
investigation, the county made a finding of maltreatment, concluding that there was a
preponderance of evidence to support a finding of sexual exploitation of the minor, but
found that there was no need for child protective services.
Following the conviction, the county opened an additional child protection
investigation regarding father’s five-year-old daughter, N.M. A social worker assigned to
the case spoke with the child’s mother who explained that she was aware father w as
prostituting girls at the time the two started dating and “told him to be careful and to stop.”
She stated that father and N.M. did not have much of a relationship and that he was not
around often. She also explained that when she would bring N.M. over to visit with father
and his family, he would leave her in the care of his mother and that N.M. would later say
that she did not want to go to her father’s home. And she claimed that she had no plans to
allow N.M. and father to have contact once father was released from prison.
The social worker also spoke with father. He explained that he had not seen N.M.
for approximately two years but had sporadic phone calls with her. He denied that he was
prostituting a minor contrary to his August 2018 guilty plea and claimed that he was instead
in a relationship with a woman “that was selling her body.”
The county both initiated a CHIPS proceeding and filed a petition to terminate
father’s parental rights on June 7, 2019. The district court relieved the county of reasonable
efforts to reunify N.M. with father because it concluded that the county’s petition to
terminate father’s parental rights made a prima facie case that father had committed an
offense that requires registration as a predatory offender. Despite this, and father’s
incarceration, the county voluntarily developed a case plan for father. The district court
held a trial on the petition on February 5, 2020 and February 1, 2021. Father, mother, a
social worker, a child protection investigator, and N.M.’s guardian ad litem testified during
the trial.
The child protection investigator and the social worker both recommended that
father’s parental rights be terminated. They testified that father’s conviction for
prostitution of a minor shows a “disregard for women” and that father views women “as a
financial gain.” They relied on father’s failure to accept responsibility for the actions that
led up to his conviction to support their belief that N.M. was at risk for physical harm or
potential sexual exploitation by father once he was released from prison and N.M. got
older. They also explained that even if father completed the programming provided by the
state as a part of his case plan, their recommendations for termination of father’s parental
rights would not change because of the nature of father’s conviction.
Testimony from N.M.’s guardian ad litem echoed the testimony of the social worker
and the child protection investigator. She explained that it was in N.M.’s best interests to
terminate father’s parental rights because of his significant criminal activity and his
dismissive view of women. She testified that she believed father viewed women as “sexual
objects that are saleable to men to use as they see fit,” and worried that N.M. “could become
a victim of sexual exploitation or assault by her father if he [was] allowed to continue [to
have] contact with her.”
Mother testified during the termination proceeding and denied any knowledge of
father’s prostitution of girls. She retracted the statements she gave to the county in August
2018 and claimed that she did not find out that father was involved in the prostitution of
minors until his arrest in 2018. She further stated that she did not have any concerns about
father abusing N.M. and retracted her earlier statements that father and N.M. did not have
a relationship. She testified that while father had never provided any financial support for
the child, father spoke to N.M. on the telephone between once a week and once a month
and gave her two gifts.
During his testimony, father indicated that he had a good relationship with N.M. He
reiterated mother’s testimony that he spoke with N.M. often and sent her gifts for her
birthday and the holidays. He also stated that while he was in prison, he did his best to
comply with the county’s case plan. He completed his GED and programming related to
anger management and character building and was waitlisted for chemical dependency and
parenting class programming.
Father also addressed his alleged chemical dependency. Both the Department of
Corrections and the county recommended father participate in chemical dependency
programming because of his claims that he smoked and sold marijuana. Father claimed
that he did not have a chemical d ependency issue but conceded that he started smoking
marijuana at the age of 18 or 19, smoked marijuana on a daily basis and selling the drug as
well. But he denied that he “had a problem with drugs” and testified that he believed he
did not need treatment.
Following the two -day trial, the district court terminated father’s parental rights.
The district court found that while father was remorseful for the lack of a relationship with
his daughter due to his conviction, father’s testimony regarding his parenting of the child
was “self-serving and minimally credible.” The district court also found that mother’s
testimony was not credible, noting the inconsistencies between her testimony and her
earlier statements to county staff. The district court relied on testimony from the social
worker, the child protection investigator, and the guardian ad litem and determined that
father had a minimal relationship with N.M. And the district court acknowledged father’s
attempts to reach out to N.M. with phone calls and gifts and his completion of his GED
and other programming. But the district court concluded that father’s minimal contact with
the child and his partial completion of his case plan did not outweigh the risks he posed to
N.M. as a result of the conduct that led to his conviction. Father now appeals.
DECISION
Father challenges the district court’s termination of his parental rights. This court
reviews the district court’s findings in a termination order for clear error and reviews for
an abuse of discretion “its determination of whether a particular statutory basis [exists] for
involuntarily terminating parental rights.” In re Welfare of Children of J.R.B., 805 N.W.2d
895, 901 (Minn. App. 2011), rev. denied (Minn. Jan. 6, 2012); see also In re Welfare of
Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014) (“[T]ermination of parental rights is
always discretionary with the [district] court.”). “This court gives deference to a [district]
court’s decision to terminate parental rights but closely inquires into the sufficiency of the
evidence to determine whether it is clear and convincing.” In re Children of T.A.A., 702
N.W.2d 703, 708 (Minn. 2005).
The legislature has established nine criteria that support termination of parental
rights. Minn. Stat. § 260C.301, subd. 1(b) (2020). A district court may terminate parental
rights when only one criterion is proven, but when a statutory basis to terminate parental
rights exists, the primary consideration in every termination case is the child ’s best
interests. Minn. Stat. § 260C.301, subds. 1(b), 7 (2020). Here, the district court relied on
Minn. Stat. § 260.012, subd. (g)(5) (2020) and terminated father’s parental rights because
he was convicted of an offense which requires him to register as a predatory sex offender.
See Minn. Stat. § 260C.301, subd . 1(9) (2020) (explaining that a district court may
terminate an individual’s parental rights if “the parent has been convicted of a crime listed
in” Minn. Stat. § 260.012, subd. (g)(1)-(5) (2020)). The district court also concluded that
the best interests of the child analysis support the termination of father’s parental rights.
Father does not dispute that the district court had an adequate basis under Minn.
Stat. § 260C.301, subd. 1(9) to terminate his parental rights but claims that the termination
was not in N.M.’s best interests. We review a district court’s ultimate determination that
termination is in a child’s best interest for an abuse of discretion. In re Welfare of Children
of D.F., 752 N.W.2d 88, 95 (Minn. App. 2008).
In analyzing a child’s best interests, “the court must balance three factors: (1) the
child’s int erest 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. Pro. P.
58.04(c)(2)(ii). “Competing interests include such things as a stable environment, health
considerations, and the child ’s preferences.” R.T.B., 492 N.W.2d at 4. During this
balancing process, the interests of the parent and child are not necessarily give n equal
weight. In re Welfare of Udstuen, 349 N.W.2d 300, 304 (Minn. App. 1984). Rather,
both the interests of the parent and child are considered along
with the circumstances of the particular case in an effort to
determine which of these interests is to predominate.
Balancing, therefore, is an active process of determining the
weight of two potentially opposing interests rather than a static
attribution of an equal weight to each interest.

Id. (quotation omitted).
Relying on these factors, the dist rict court concluded that it was in N.M.’s best
interests to terminate father’s parental rights. The district court acknowledged that both
father and daughter had an interest in maintaining the parent -child relationship but
determined that competing interests including the conduct that led up to father’s conviction
and his failure to change that behavior outweighed that interest. We agree.
The record establishes that father and N.M. had some interest in preserving their
relationship, but the interest is minimal. Mother’s statements to the county’s social worker
and child-protection investigator and their subsequent testimony indicate that father and
N.M. had little to no relationship prior to his incarnation. Father saw N.M. sporadically
when mother would drop her off at father’s home, which he shared with his mother. But
mother claimed that father would leave N.M. in the care of his mother and would leave the
home often enough that N.M. stated that she did not want to visit her father anymore.
Mother’s testimony revealed that she was primarily raising N.M. and father did not provide
mother with any financial or emotional support. Further, father had minimal contact with
N.M., during his three years in prison, speaking to her over the phone sporadical ly and
sending her two gifts.
The competing interests, however, weigh in favor of the conclusion that termination
was in N.M.’s best interests. First, father’s past chemical dependency issues provide
support for the determination that father may not b e able to provide N.M. with a stable
environment. Father testified at the termination hearing that prior to his conviction, he
smoked marijuana every day and sold the drug for “fast money.” He denied that this
substance use could have had a negative effect on N.M., maintaining that this could only
be the case if he was smoking “four or five blunts a day.” He also refused to attend
chemical dependency programming despite recommendations from both the Department
of Corrections and the county. Father claimed that he did not need treatment “because [he
did not have] a problem with drugs.” But testimony from the guardian ad litem established
that father had an alcohol -related incident in prison in May 2020 resulting in a 21 -day
disciplinary action.
Second, father’s conviction for a sexual offense involving a minor presents
challenges to developing and continuing a relationship with N.M. Testimony from the
social worker, the child protection investigator, and the guardian ad litem establishes that
father continues to have a dismissive view of women and appears to view women as sexual
objects that can be sold to men. Further, there is a concern that father might present a
safety issue to the child if allowed to parent because of the nature of his conviction. See In
re Welfare of K.L.W., 924 N.W.2d 649, 657 (Minn. App. 2019) (explaining that a parent’s
conviction for a sexual offense may be considered in the best-interests analysis if there is
no evidence that the parent’s behavior has changed), rev. denied (Minn. Mar. 8, 2019). The
district court relied on testimony from the county’s witnesses to conclude that father’s
behavior toward women had not changed since his conviction. This coupled with father’s
failure to address his chemical dependency issues pro vides adequate support for the
conclusion that the risks to N.M.’s safety outweighed the interest that father and N.M. had
in preserving the relationship.
Father asks us to conclude that the district court’s reliance on his failure to attend
chemical depen dency programming or parenting classes was erroneous because the
programming is not relevant to maintaining the parent-child relationship. But the district
court did not rely on father’s failure to attend chemical dependency treatment, but rather
upon his continued denial of his issues with chemical dependency for which treatment was
necessary. The district court concluded that father’s “lack of insight into his chemical
dependency issues raises further concerns about his future ability to parent” N.M. The
district court also explained that the parenting program would have positively impacted his
ability to parent N.M. We see no clear error in that conclusion.
And to the extent that the district court did consider father’s failure to attend this
programming, the reliance was appropriate. A district court may examine the behaviors of
a parent to determine w hether any change had occurred which would not support
termination. Id. Father’s failure to concede that he has a chemical dependency issue or
has issues with his parenting of the child and participate in programming establishes an
unwillingness or inability to change the behavior that supported the county’s petition for
termination. We conclude that the district court did not abuse its discretion by terminating
father’s parental rights based upon this balancing of the competing interests of father and
the child with their interest in preserving the parent-child relationship.
Affirmed.