In the Matter of the Welfare of the Child of: S.L.W. and J.H.O., 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This opinion is nonprecedential except as provided by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
A21-0500

In the Matter of the Welfare of the Child of:
S.L.W. and J.H.O., Parents.

Filed November 15, 2021
Affirmed
Gaïtas, Judge

Stearns County District Court
File No. 73-JV-20-6206

Kimberly Stommes, Stommes Law Office, LLC, St. Cloud, Minnesota (for appellant-father
J.H.O.)

Wanda Gierman, St. Cloud, Minnesota (for respondent-mother S.L.W.)

Janelle P. Kendall, Stearns County Attorn ey, Dana D. Erickson, Assistant County
Attorney, St. Cloud, Minnesota (for respondent department)

Lori Hanson, Albany, Minnesota (guardian ad litem)

Considered and decided by Smith, Tracy M., Presiding Judge; Slieter, Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this appeal from an order terminating pa rental rights to his child, appellant-father
J.H.O. argues that the district court erred in determining that a statutory ground to terminate
parental rights existed, that termination was in the best interests of the child, and that
reasonable efforts had been made to reunite the family. We affirm.
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FACTS
Father and respondent-mothe r S.L.W. are the parents of J.K.J.O., a child born in
2014. Following a court trial in 2021, the district court terminated father’s parental rights
to child. Mother, who voluntarily terminated her parental rights before the court trial, does
not participate in this appeal.
In August 2019, child and his maternal half-siblings were taken from mother’s care
and placed on an emergency pr otective care hold and in em ergency foster care. The
children were removed due to mother’s chemical dependency issues and because they were
staying with a relative who had previously lost her parental rights. Child and child’s half-
siblings have been with the same foster-care family since that time.
Father has been incarcerated for most of child’s life. Shor tly after child was
removed from mother’s care, father was convicted of rece iving profits from prostitution
and sex trafficking. He was sentenced to 156 months in prison for these offenses.
A family reunification plan was created on August 16, 2019, and signed by father
on September 19, 2019. Child was adjudicated in need of protection or services (CHIPS)
on October 22, 2019, and an amended CHIPS petition was f iled in Stearns County on
March 26, 2020. Father was initially a party to the CHIPS action. But because he opted
not to attend the termination trial in pers on, which would have required his temporary
transfer from prison to the St earns County jail, he agreed to change his status to a
“participant” in the proceeding. As a particip ant, he was permitted to remotely appear at
the trial via a video conferencing application.
3
Respondent Stearns County (t he county) filed a termin ation of parental rights
petition on September 17, 2020, seeking to te rminate both parents’ rights. The petition
alleged two grounds for termination—that pa rents were each palp ably unfit and that
reasonable efforts had failed to correct the conditions leading to child’s out-of-home
placement. See Minn. Stat. § 260C.301, subd. 1(b )(4), (5) (2020) (setting forth these
statutory grounds for termination of parental rights).
Father’s criminal history
Child was six years old at the time of the termination proceedings. Father has been
incarcerated for the entirety of child’s life except for nine months. His criminal history is
as follows:
 On August 17, 2006, father was charged with aiding and abetting first-degree
aggravated robbery. The execution of his sentence was stayed.
 On January 8, 2007, father was charge d with aiding and abetting aggravated
first-degree robbery. Father pleaded guilty and was sentenced to 50 months in prison.
 On July 18, 2012, father was charged with felony possession of a firearm. Father
was convicted and sentenced to 60 months in prison.
 On October 11, 2013, father was charged with fifth-degree drug possession. He
was convicted and sentenced to 19 months in prison.
 Father was placed on supervised release on October 4, 2016.
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 In January 2017, after father was char ged with driving after suspension and
possession of marijuana, father’s supervis ed release was “restr uctured,” and he was
allowed to remain in the community.
 In April 2017 father’s supervised releas e was “restructured” again following a
new domestic assault.
 On July 23, 2017, father was arrested for simple robbery and was later charged
with sex trafficking, promot ion of prostitution, receiving profits fro m prostitution, and
domestic abuse. Father was convicted of receiving profits fro m prostitution and sex
trafficking and was sentenced to 156 months in prison.
At the time of the district court proceedings in this case, father was scheduled to be
released from prison in 2026. Father testified, however, th at he had been approved for a
six-month boot camp that coul d begin as early as November 2021, which could result in
his early release from prison.
Due to father’s extended periods of incarceration, he has not seen or talked to child
since August 16, 2019, the date that child was placed in emergency foster care. However,
father has sent letters, pictures, and gifts to child and has inquired about child since that
time.
Family reunification plan
The reunification plan was jointly created by mother and a county social worker, in
consultation with the guardian ad litem (GAL) an d child’s foster parent . As to father’s
“needs for reunification,” the pl an states, “Due to [father]’s current status of being
incarcerated, his needs or case requirement s will be to abide by all criminal case
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requirements. If there are pare ntal courses or family engage ment services offered at the
current place of incarceration, [father] will be asked to participate in those services.” The
plan also addresses what parents must accomplis h for child to return home. As to father,
this section of the plan states, “Due to [father]’s current status of being incarcerated, child
returning to [father]’s care is not applicable.”
Termination trial and district court order
The district court held a termination trial on March 11, 2021. The county presented
seven exhibits, including the case plan and certified copies of father’s criminal records.
Additionally, five witnesses testified: the foster parent, a career corrections agent, a county
social worker assigned to the case, the GAL, and father.
The foster parent testified about child’s relationship with the half-siblings, who are
also in the foster home. According to the foster parent, child and the siblings have a bond,
which includes playing with one another and checking in with one another.
The corrections agent testified that he supervised father’s supervised release
between 2016 and 2017. According to the agent, father did not comply with the conditions
of his release and had two supervised-release violations during this period. Ultimately, the
agent testified, father committed new felony offenses while on supervised release, which
resulted in an additional lengthy prison sentence.
The social worker testified that father was never considered the reunification home
at any point during the CHIPS case. She explained that, to the best of her knowledge, child
had never lived with father. The social worker also testified that she met with father over
the course of the CHIPS case and that she gave child letters and pictures from father.
6
During the GAL’s testimony, she noted that father had been incarcerated for almost
all of child’s life. Because child is so young, and child’s relationship with father had been
so limited, the GAL was unable to provide an opinion about the parent-child relationship.
But given father’s extensive incarceration, the GAL recommended termination of father’s
parental rights.
Finally, father testified about his relationship with child. According to father, during
the period that he was not in prison, he regularly visited with child. He also paid for child’s
daycare. Because father is a professional barber, he cut child’s hair whenever he could.
Following the trial, the district court issu ed an order terminating father’s parental
rights. The district court determined that fa ther was palpably unfit to parent child, that
termination was in child’s best interests, a nd that the county had made reasonable efforts
to reunite the family.
Father appeals.
DECISION
Father challenges the district court’s order terminating his parental rights. Parental
rights should only be terminated “for grave and weighty reasons.” In re Welfare of H.G.B.,
306 N.W.2d 821, 825 (Minn. 1981). Here, the district court concluded that one statutory
reason supported termination of father’s parental rights—that father “is palpably unfit to
be a party to the parent and child relationship.” See Minn. Stat. § 260C.301, subd. 1(b)(4).
Generally, an appellate court will affirm the district court’s termination of parental
rights when (1) “at least one statutory ground for termination is supported by clear and
convincing evidence,” (2) “termi nation is in the best interest s of the child,” and (3) “the
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county has made reasonable efforts to reunite the family.” In re Welfare of Child. of S.E.P.,
744 N.W.2d 381, 385 (Minn. 2008); see Minn. Stat. §§ 260C.301, subd. 1(b) (listing
statutory grounds for the involuntary termin ation of parental rights), .317, subd. 1
(requiring clear and convincing evidence of a statutory ground to terminate parental rights)
(2020); Minn. R. Juv. Prot. P. 58.03, subd. 2(a) (stating that the standard of proof in juvenile
protection proceedings not involving an Indian child is clear and convincing evidence).
On appeal from a district c ourt’s termination of parental rights, appellate courts
“closely inquire into the sufficiency of the evidence to determine whether it was clear and
convincing,” S.E.P., 744 N.W.2d at 385, and “[c]onsiderable deference is due to the district
court’s decision because a district court is in a superior position to assess the credibility of
witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). Appellate courts
review the district court’s findings of the underlying or basic facts for clear error but review
for an abuse of discretion the district court’s determination of whether those underlying or
basic facts show the existence of a particular statutory basis to terminate parental rights. In
re Welfare of Child. of J.R.B. , 805 N.W.2d 895, 899- 901 (Minn. App. 2011), rev. denied
(Minn. Jan. 6, 2012).
I. The district court did not abuse its disc retion in concluding that clear and
convincing evidence established that father was palpably unfit to be a party to
the parent and child relationship.

Father argues that the reco rd does not support the factual findings underlying the
district court’s determination that he is palpably unfit to be a party to the parent and child
relationship. Thus, father contends, the distri ct court abused its discretion in terminating
his parental rights on this ground.
8
The supreme court recently discussed the clear-error standard that appellate courts
use to review a district court’s findings of fact:
In applying the clear-error standard, [appellate courts] view the
evidence in a light favorable to the findings. [Appellate courts]
will not conclude that a factfinder clearly erred unless, on the
entire evidence, [they] are left with a definite and firm
conviction that a mistake has been committed.

In re Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotations and citations
omitted).
1 An appellate court must “fully and fairly consider the evidence, but so far only
as is necessary to determin e [whether that evidence] reasonably tends to support the
findings of the factfinder.” Id. at 223 (quotation omitted). And “[w]hen the record
reasonably supports the findings at issue on appe al, it is immaterial th at the record might
also provide a reasonable basis for inferences and findings to the contrary.” Id. (quotation
omitted).
Under Minnesota Statutes section 260C.301, subdivision 1(b)(4), a statutory basis
to terminate parental rights exists when a parent is deemed
palpably unfit to be a party to the parent and child relationship
because of a consistent pattern . . . of specific conditions
directly relating to the parent and child relationship . . . which
are determined by the court to be of a duration or nature that
renders the parent unable, fo r the reasonably foreseeable
future, to care appropriately for the ongoing physical, mental,
or emotional needs of the child.

1 In Kenney, which is a civil-commitment case, the supreme court prefaced its discussion
with the observation that “[t]he clear-error standard of review is familiar because it applies
across many contexts.” Id. We therefore presume that Kenney’s discussion of the clear-
error standard of review is not limited to the commitment context.
9
Father argues that there is no causal connection between his criminal history and his
alleged inability to care for his child. He is co rrect that “a parent’s incarceration alone is
not enough to warrant termination of parental rights.” In re Child of Simon, 662 N.W.2d
155, 162 (Minn. App. 2003). However, the court may consider “the fact of incarceration
in conjunction with other evidence supporting the petition for termination.” Id.; see also
In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn. App. 1997) (concluding that no error
was committed in considering the father’s in carceration, limited contact with son, and
failure to cooperate with social workers), rev. denied (Minn. Apr. 15, 1997). “If a parent’s
behavior is likely to be detrimental to the [child]’s physical or mental health or morals, the
parent can be found to be palpably unfit a nd have his parental rights terminated.” In re
Child of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003).
The district court did not conclude that father was palpably unfit simply because he
was incarcerated. Rather, the district court found that father’s chronic incarceration has
“negatively affected the development of an appropriate parent-child relationship.” And the
district court determined that, because of father’s lengthy prison sentence, he will be unable
to care for child for the foreseeable future. The record supports this finding. It shows that
father has been incarcerated for all but nine mo nths of child’s life. Child was six at the
time of the termination trial and, as the distri ct court observed, child “would have to wait
between one and five years to po ssibly have his father back in his life.” At the trial, the
county social worker testif ied that this timeline would be well beyond the recommended
permanency timelines designed to provide child with a permanent, st able, and safe place
to live—even if father is able to obtain an early release from prison.
10
Father also argues that the district court received no evidence and made no findings
that his pattern of felonious criminal conduct would likely be detrimental to child’s mental
health or morals. We disagree.
Father himself testified about his extensive criminal history. Most of the exhibits at
the trial related to father’s criminal activity. The county presented six criminal complaints
filed against father, which detailed his alle ged conduct, and the corresponding conviction
records. Based on this evidence, the district court found that father had engaged in a pattern
of felonious conduct that included domestic assaults, robberies with firearms, profiting
from prostitution, and sex-trafficking offenses . And given father’s pattern of criminal
activity, the district court dete rmined that father’s conduct would be detrimental to the
mental health or morals of child. This fi nding, which has record su pport, is not clearly
erroneous.
Because the district court’s factual findi ngs are well supported by the record and
clear and convincing evidence established father’s palpable unfitness, the district court did
not abuse its discretion in determining that this ground for termination was met.
II. The district court did not clearly err in determining that the county made
reasonable efforts to reunify the family.

Before terminating parental rights, a district court must also find that a county made
reasonable efforts to reunify the child and the parent. Mi nn. Stat. § 260C.301, subd. 8
(2020). In deciding whether reasonable efforts were made, the district court must consider
whether the efforts were “(1) relevant to the safety and protection of the child; (2) adequate
to meet the needs of the ch ild and family; (3) culturally appropriate; (4) available and
11
accessible; (5) consistent and timely; and (6 ) realistic under the circumstances.” Minn.
Stat. § 260.012(h) (2020). “Reasonable efforts” must “go beyond mere matters of form so
as to include real, genuine assistance.” In re Welfare of Child. of S.W. , 727 N.W.2d 144,
150 (Minn. App. 2007) (quotation omitted), rev. denied (Minn. Mar. 28, 2007). However,
“the nature of the services which constitu te reasonable efforts depends on the problem
presented.” In re Welfare of Child. of T.R., 750 N.W.2d 656, 664 (Minn. 2008) (quotation
omitted). And what constitutes “reasonable efforts” depends on the facts of each case. In
re Welfare of Child of A.M.C. , 920 N.W.2d 648, 663 (Minn. App. 2018). On review, the
appellate court examines the record to determ ine whether “the district court’s findings as
to the county’s efforts are supported by substantial evidence and are not clearly erroneous.”
S.E.P., 744 N.W.2d at 387.
For a noncustodial parent, the social services agency must perform due diligence to
“assess [the parent’s] ability to provide day-to-day care for th e child and, where
appropriate, provide services necessary to enable the noncustodial parent to safely provide
the care.” Minn. Stat. § 260.012(e)(2) (2020). Reasonable services are required until the
district court determines that “the provision of services or further services for the purposes
of reunification is futile and therefore unreasonable under the circumstances.” In re Child.
of T.R., 750 N.W.2d 656, 664 (Minn. 2008).
Father argues that because the county’s reunification plan did not comply with the
statute, the district court erred in determining that the county’s efforts were reasonable. He
first contends that the plan di d not satisfy the statute because it did not prescribe services
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or identify any specific actions required of father for reunifi cation. Thus, according to
father, he was effectively deprived of a case plan.
In support of his argument, father cites In re Welfare of Child. of A.R.B. , which
holds that a parent’s incar ceration alone does not excu se a county from creating a
reunification plan. 906 N. W.2d 894, 899 (Minn. App. 2018). However, A.R.B. is
distinguishable. There, the county made no court-approved, written case plan for
reunification. Id. at 898. By contrast, here, the county did create a plan signed by father
and approved by the court. “[A] case plan th at has been approved by the district court is
presumptively reasonable.” S.E.P., 744 N.W.2d at 388. “[O]nce a case plan has been
approved by the court, the appropriate action for a parent who believes some aspect of the
case plan to be unreasonable is to ask the court to change it, rather th an to simply ignore
it.” Id. The Minnesota Rules of Juvenile Protection Procedure provide parents with a legal
mechanism to challenge the reasonableness of a case plan. See Minn. R. Juv. Prot. P. 51.03.
But father did not object to the plan or ask for it to be ch anged. Indeed, even in his brief
father does not suggest what th e county could have done diffe rently to help him achieve
the objective of providing a safe, stable, and healthy environment for child.
Father also argues that the county failed to meet its duty of making reasonable
efforts to reunite him with child. However, the record supports the district court’s finding
that father’s chronic incarceration for almost all of child’s life meant that father had “little
relationship with his son.” “The purpose of the child-protection laws is not to create
relationships between children and their biological parents where none previously existed
but rather to preserve existing relationships where reunification in the foreseeable future is
13
possible and such relationships are in the [child]’s best interests.” In re Child. of R.W., 678
N.W.2d 49, 56 (Minn. 2004).
The district court recounted father’s i nvolvement with the co unty and concluded
that, at the time child was placed in foster care, father had been continuously incarcerated
for over two years for his current offenses. Father had not been re leased throughout the
pendency of the child protec tion case. And one month afte r child was removed from his
mother’s home, father was comm itted to his current term of imprisonment. The district
court continued:
[The county] met with [father] in prison, reviewed the case
plan with him, and kept in c ontact with him during the case.
[The county] also facilitated contact between the child and
[father], as well as between the child and [father’s] relatives
during the pendency of the ca se. These efforts were
reasonable, given [father’s] incarceration.

The record—including father’s own testimony—supports these conclusions.
Again, while incarceration alone cannot justify termination of parental rights, it is a
factor for the court to consider. In re Child. of Wildey, 669 N.W.2d 408, 414-16 (Minn.
App. 2003), aff’d as modified sub nom. R.W. , 678 N.W.2d 49. Father cannot expect the
courts “to view the case as if he were ‘ outside’ and available tomorrow to take over day-
to-day parenting.” Id. at 416.
Based on our review of the record, we conclude that the district court’s findings as
to the reasonableness of the county’s efforts are supported by substantial evidence and are
not clearly erroneous.
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III. The district court did not abuse its discretion by determining that termination
of father’s parental rights was in the best interests of the child.

Father argues that the district court abus ed its discretion by concluding that it was
in child’s best interests to te rminate father’s parental rights. A district court may only
terminate parental rights if it is in the best interests of the child. S.E.P., 744 N.W.2d at
385. In evaluating the best interests of a child in a proceeding to terminate parental rights,
a district court must consider (1) “the child ’s interests in preserving the parent-child
relationship,” (2) “the parent’s interests in preserving the parent-child relationship,” and
(3) “any competing interests of the child.” Minn. R. Juv. Prot. P. 58.04(c)(2)(ii).
“Competing interests include health considerations, a stable environment, and the child’s
preference.” In re Welfare of Child of J.K.T., 814 N.W.2d 76, 92 (Minn. App. 2012).
“[D]etermination of a child’s best intere sts is generally not susceptible to an
appellate court’s global review of a record, a nd . . . an appellate court’s combing through
the record to determine best interests is inappropriate because it involves credibility
determinations.” In re Welfare of Child of D.L.D. , 771 N.W.2d 538, 546 (Minn. App.
2009) (quotation omitted). We review a district court’s best-interests determination for an
abuse of discretion. In re Welfare of Child of J.R.R. , 943 N.W.2d 661, 669 (Minn. App.
2020).
Father argues that in determining that termination was in child’s best interests, the
district court erroneously conc luded that “the child has little relationship with [father] to
preserve.” Father points to his testimony detailing his attempts to maintain a relationship
with child. However, appellate c ourts must defer to the district court’s determinations of
15
witness credibility and the weight to be given the evidence they present. In re Welfare of
T.D., 731 N.W.2d 548, 555 (Minn. App. 2007), rev. denied (Minn. Jul. 17, 2007); see also
S.W., 727 N.W.2d at 148 (“Consider able deference is due to th e district court’s decision
because a district court is in a superior position to assess the credibility of witnesses.”
(quotation and citation omitted)). While the district court found that “[i]t is hard for [father]
to be separated from his son” and that father sends things to child and writes child letters,
the court did not credit much of father’s testimony.
The record supports the district court’s de terminations that it is in child’s best
interests to have his basic needs met by a pa rent who is present to provide day-to-day
supervision and to provide safe, stable, and secu re housing; that child has an interest in
having caretakers who are not involved in c ontinuous criminal ac tivities that lead to
incarceration; and that child has an interest in living with half-siblings “with whom he has
a strong bond.” Each of these conclusions is founded on concern about providing stability
for child, “a factor which must be given high priority” when considering the best interests
of a child. In re Welfare of K.T., 327 N.W.2d 13, 18 (Minn. App. 1982) (considering best
interests of the child in the context of a motion to vacate a voluntary termination of parental
rights).
The district court acknowledged father’s competing interests, observing that father
loves his child and desires to have a strong re lationship with him. However, “the 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 (2020 ). The district court concluded, and the record supports the
16
finding that, because of his chronic incarceration, father is unable to provide safe and stable
care for child.
We conclude that the district court did not abuse its discretion by determining that
child’s interest in a permanent, safe, and stable home outweigh father’s competing interest
in maintaining his parental rights.
Affirmed.