In re the Matter of the Welfare of the Children of: B. H. K. and A. J. S. B., 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This opinion is nonprecedential except as provided by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
A21-0519

In re the Matter of the Welfare of the Children of: B. H. K. and A. J. S. B., Parents.

Filed October 18, 2021
Affirmed
Larkin, Judge

Brown County District Court
File No. 08-JV-20-137

Steven D. Winkler, VARD Law, St. Peter, Minnesota (for appellant-father A.J.S.B.)

Charles W. Hanson, Brown County Attorney, Jill M. Jensen, Assistant County Attorney,
New Ulm, Minnesota (for respondent Brown County Human Services)

Heather Schwab, New Ulm, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant-father challenges the district court’s termination of his parental rights to
his children, arguing that the county failed to make reasonable reunification efforts, that
termination of his parental rights was not in the children’s best interests, and that he
received ineffective assistance of counsel. We affirm.

FACTS
This appeal stems from a juvenile-protection matter involving two children: child
1, born in 2013, and child 2 , born in 2017. Appellant A.J.S.B. is the children’s father.
Father was not married to the children’s mother, B.H.K., when the children were conceived
or born.
On May 24, 2020, the police visited mother’s home and discovered that child 2 was
unsupervised and exposed to methamphetamine. The police arrested mother and placed
the children on a 72 -hour health-and-welfare hold. At that time, father was in inpatient
treatment for methamphetamine use. On May 27, respondent Brown County Human
Services filed a petition alleging that the children needed protection or services and
requesting emergency custody of the children. The district court ordered the children to
remain in out-of-home placement.
The county petitioned to terminate father’s parental rights on January 19, 2021. The
district court held a trial on the petition on March 3-4, and in April, the district court issued
an order terminating father’s parental rights. Father appeals.1
DECISION
The district court has broad discretionary powers when deciding juvenile-protection
matters. In re Welfare of Child of S.S.W. , 767 N.W.2d 723, 733 (Minn. App. 2009).
Appellate courts give considerable deference to a district court’s decision to terminate
parental rights and will affirm an order for termination if at least one statutory ground for

1 The district court also terminated mother’s parental rights , but mo ther is not a party to
this appeal.
termination is supported by clear and convincing evidence, termination is in the best
interests of the children, and the county made reasonable efforts to reunite the family. In
re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
Father challenges the termination of his parental rights on three grounds. We
address each in turn.
I.
Father contends that the district court erred in determining that the county made
reasonable reunification efforts. In any proceeding to terminate parental rights, the district
court must make specific findings that “reasonable efforts to finalize the permanency plan
to reunify the child and the parent were made” or that “reasonable efforts for reunification
are not required.” Minn. Stat. § 260C.301, subd. 8 (2020). The parties agree that
reasonable efforts were required in this case.
When determining whether a county has made reasonable reunification efforts, the
district court must consider whether the services to the child and family were “(1) relevant
to the safety and protection of the child; (2) adequate to meet the needs of the child and
family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely;
and (6) realistic under the circumstances.” Minn. Stat. § 260.012(h) (2020). Appellate
courts review a district court’s reasonable-efforts findings to ensure that they are supported
by substantial evidence and are not clearly erroneous. S.E.P., 744 N.W.2d at 387.
Father argues that the county’s reunification efforts were inconsistent and untimely.
Specifically, he argues that the timeline to correct the conditions that led to placement were
“unduly compressed” because the county did not create a case plan until August 2020 and
the termination trial was held only six to seven months after he received the case plan.
In determining that the county made reasonable efforts to reunite father with the
children, the district court found that although the county did not initially develop a case
plan for father, it delayed doing so because father was either “in treatment, on the run, or
incarcerated.” The record supports that finding. At the beginning of the underlying
juvenile-protection proceeding, father was in treatment after his arrest for a probation
violation in early May 2020. He failed to complete that treatment program and absconded
on May 31. On June 25 and 26, he spoke with the assigned juvenile -protection social
worker by phone. The social worker told him that a case plan needed to be developed.
Father refused to disclose his location because there was a warrant for his arrest. On July
7, father was arrested for possession of methamphetamine. The social worker ultimately
met with father on August 20, 2020, while he was incarcerated, and discussed his case plan.
Father signed a case plan regarding each child on August 27.
This court has stated that a parent’s incarceration may affect reasonable
reunification efforts and has emphasized that a county must create a case plan even if the
parent is incarcerated. In re Welfare of Children of A.R.B., 906 N.W.2d 894, 899 (Minn.
App. 2018). For example, in A.R.B., this court concluded that the county did not make
reasonable reunification efforts because it did not create any case plan for an incarcerated
parent. Id. at 898-900. Unlike the circumstances in A.R.B., the county social worker in
this case met with father while he was in jail and developed a case plan regarding each
child. And at oral argument before this court, father could not articulate how the delay in
developing his case plan after he was incarcerated prejudiced him. Nor did he identify any
additional services that should have been offered. Instead, he argued that the county’s
reunification efforts were unreasonable because communication between father and the
county could have been better and t hat under the circumstances of this case, reasonable
efforts required the allowance of more time for him to complete the case-plan services.
Father’s argument is unavailing. Minnesota has adopted expedited deadlines for
securing permanent homes for chi ldren who have been removed from their parents’ care
due to abuse or neglect and who cannot safely be returned to their parents’ care. See Minn.
Stat. §§ 260C.503-.509 (2020); Minn. R. Juv. Prot. P. 52.01-.02. The law allows a district
court to extend those deadlines if a parent is actively working to correct the conditions that
led to a child’s removal from the home. Minn. Stat. § 260C.204(d)(1)(ii) (2020). In this
case, the district court granted such an extension on November 19, 2020, ruling that the
permanency deadline would be extended up to six months based on father’s participation
in case-plan services at that time. But on January 15, 2021, the district court ordered the
county to file a permanency petition, and the underlying termination proceeding ensued.
The record supports the district court’s decision to move forward with permanency
planning. Father’s case plan required him to abstain from nonprescribed mood -altering
chemicals and alcohol, complete a chemical-use assessment, follow the recommendations
of that assessment, cooperate with the county, remain law abiding, and follow his probation
requirements. The record indicates that father made some progress on his case-plan goals.
On September 2, 2020, father was furloughed to inpatient chemical-dependency treatment.
He successfully completed treatment with a “guarded prognosis.” Although the discharge
recommendation was for a halfway house with a medium -intensity level of care, father
wanted to return to the community and pursue outpatien t treatment. Despite his initial
objections, father entered a halfway house on October 6. Through no fault of his own,
father was discharged on October 23 because the halfway house closed. Father’s discharge
from the halfway house was “chaotic” because his counselor had to quickly make discharge
recommendations for 15 to 20 clients, including father.
Father’s discharge summary from his treatment counselor at the halfway house
stated that he would reside with his brother and recommended that he attend low-intensity
outpatient treatment. Father’s probation agent was concerned about that plan because she
thought father needed the medium-intensity level of care that he had received at the halfway
house. Nevertheless, father’s treatment counselor did not c hange her recommendation
because father refused to sign a release of information for another treatment program that
would provide a medium-intensity level of care.
The record establishes that even though father agreed to enter outpatient treatment
after his discharge from the halfway house, he never did so. From November 2020 to
January 2021, father had numerous probation violations, most of which involved the failure
to submit to random drug testing. During those two months, he did not test 12 of the 14
days required and did not call 48 of the 53 days requested. Father often gave excuses for
failing to test. F or example, he claimed that he could not test because he was working.
Although father provided proof of his employment, he did not provide his work schedule,
despite requests from the county. Moreover, father provided multiple urine samples that
tested positive for methamphetamine . O n other occasions he failed to provide a urine
sample for several days after being arrested. On January 6, 2021 , father was arrested on
charges of receiving stolen property.
Also significant is father’s failure to take advantage of opportunities to have contact
with his children during the juvenile-protection proceeding. The district court found that
the county offered supervised visits with the children, but father “never completed the
orientation or made any discernible effort to use the service offered.” The record indicates
that the county referred father for visitation with the children on October 29, 2020, through
a parenting-time center. That visitation did not occur because father did not attend the
scheduled orientation in November 2020. After father missed the orientation, the
parenting-time center emailed him and asked what his plans were, but fathe r never
responded to that email.
Father had contact with child 1 only two times during the pendency of the
underlying proceeding. That contact occurred during the child’s therapy sessions . The
first contact was by telephone, and the second was by video. During the second visit, father
did not log into the video session at the scheduled time, so the therapist had to call father.
Once the session began, father had a difficult time paying attention because he was at work.
After the second session, father told child 1 that he would join more sessions, but he did
not do so. A third session was scheduled. Father was supposed to inform the therapist in
advance whether he would attend in person or remotely, but he did not do so. Instead, he
left a voicemail for the therapist about half an hour after the session began, saying that he
was ready to join the session remotely. The therapist did not answer her phone because
she does not answer the phone during sessions. There was no additional contact between
father and child 1 because father did not take the steps necessary to have contact. The
record indicates that f ather did not have any contact with child 2 during the underlying
proceeding.
Father emphasizes the progress that he made on his case -plan requ irements and
argues that he could have made more progress if the county had delayed petitioning for
termination of his parental rights, thereby allowing him more time to work on his case-plan
services. But father’s actions undermine his argument that he w ould have attained the
goals of his case plans if he had been given more time to do so. Ten months passed between
the initiation of the underlying juvenile-protection matter and the ensuing termination trial.
Six months passed between father’s agreement to the terms of a case plan setting forth
services aimed at reunification and the termination trial. Four months passed between
father’s agreement to pursue outpatient treatment following the closure of the halfway
house and the termination trial. Yet, father had contact with child 1 only two times, had
no contact with child 2, and never started outpatient treatment. This record simply does
not support father’s argument that he would have satisfactorily participated in case -plan
services if he had been given more time to do so.
Moreover—and most importantly —Minnesota adopted expedited timelines in its
procedural rules because the uncertainty associated with needlessly delayed permanency
decisions is damaging to children who are placed out of home due to abuse or neglect. See
In re Welfare of J.R. , 655 N.W.2d 1, 5 (Minn. 2003). Father’s argument that reasonable
efforts were lacking because he was not allowed more time to engage in case -plan
services—even though he had little-to-no contact with his children and failed to engage in
most case-plan services after leaving the halfway house —is entirely inconsistent with
Minnesota’s expedited permanency timelines and the important policy they serve. We
therefore reject father’s assertion that the county’s reunification efforts were unreasonable
because the proceedings in this case were “unduly compressed.”
In sum, the district court’s finding that the county made reasonable efforts to reunite
father with the children is supported by substantial evidence and is not clearly erroneous.
II.
Father contends that the district court erred in determining that termination of
parental rights was in the children’s best interests. In any proceeding to terminate parental
rights, “the best interests of the c hild must be the paramount consideration.” Minn. Stat.
§ 260C.301, subd. 7 (2020). Before terminating parental rights, the district court must find
that termination is in the best interests of the child and must analyze “the child’s interests
in preserving the parent-child relationship,” “the parent’s interests in preserving the parent-
child relationship,” and “any competing interests of the child.” Minn. R. Juv. Prot. P.
58.04(c)(2)(ii). Competing interests include “a stable environment, health considerations
and the child’s preferences.” In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).
“Where the interests of parent and child conflict, the interests of the child are paramount.”
Minn. Stat. § 260C.301, subd. 7. Appellate courts review a district court’s determination
that termination is in a child’s best interests for an abuse of discretion. In re Welfare of
Children of J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011), rev. denied (Minn. Jan. 6,
2012).
Here, the district court analyzed each of the best-interests factors and concluded that
termination of father’s parental rights was in the children’s best interests. As to the first
factor, the district court found that child 1’s interest in preserving the parent -child
relationship was “minimal” because child 1 “has expressed fear of father and was worried
that father would attempt to take her from the therapy session that he attended remotely.”
Regarding child 2, the district court determined that there was little evidence regarding his
interest in preserving the parent-child relationship.
The record supports the district court’s findings. Child 1’s therapist explained child
1 had worried that father would “see her,” “hurt her,” or “be mad at her.” Child 1’s fear of
father stemmed from her witnessing father be violent and abusive toward mother. Before
father’s first virtual visit during therapy, child 1 was “scared” and “nervous.” During the
telephone visit, father told child 1 several times that she would live with him, and the
therapist had to redirect him and tell him not to make promises about the future. After
father suggested joining in her therapy, child 1 became more anxious, twice asked the
therapist to barricade the door and put the blinds down, and expressed concern that father
would try to take her. A couple weeks before the trial, she told her therapist that she
worried that father would kidnap her.
The children’s court-appointed guardian ad litem testified that father requested the
removal of child 1’s therapist, even though child 1 had a “strong bond” with her therapist
and trusted her. According to the guardian ad litem, seeing a different therapist would be
inconsistent with child 1’s best interests because it takes time to build a strong bond
between a child and therapist. Father neither asked the guardian ad litem about child 2’s
well-being nor asked to visit him; he asked only about child 1. The guardian ad litem noted
that child 2 was too young to express his wishes about placement.
As to the second best -interests factor, the district court recognized that father
claimed to have a significant interest in preserving the parent -child relationship. But it
found that father “has demonstrated an unwillingness to do the work necessary to maintain
that relationship” because he “has continued to abuse drugs, break the law, go on the run,
and not follow recommendations for chemical dependency treatment aftercare.” Father
challenges that finding, arguing that it “ignores the work that Father did do in the short
time he had with a case plan” and “casts Father’s issues as a matter of will.”
Even though father made some progress on his case-plan goals, the record supports
the district court’s finding that he was unwilling to do the work necessary to maintain a
relationship with the children. Again, father went on the run for more than one month
shortly after the juvenile-protection proceeding began, failed to enter outpatient treatment
after his halfway house closed in October 2020, violated probation numerous times, was
charged with additional criminal offenses, and failed to take the steps necessary to maintain
contact with his children. Father points to text messages he sent in January 2021 and
testimony from his stepfather as evidence that he was willing to improve his relationship
with the children. But the district court was in the best position to determine father’s
credibility regarding that issue, and this court defers to the district court’s implicit
determination that father was not credible. See S.S.W., 767 N.W.2d at 733.
As to the third best -interests factor, the children’s competing interests, the district
court concluded that the children “have an overwhelming and overriding interest in having
a safe, stable, permanent family home.” The guardian ad litem opined that father could not
provide such a home, noting that he had been unable to provide for himself. Similarly, the
social worker testified that father was unable to provide for the children’s mental health,
physical health, shelter, food, clothing, me dical, and educational needs because of his
issues with criminal activity, mental health, and chemical use, which caused him to fail “to
show up.”
In sum, the district court carefully weighed each of the relevant best-interests factors
and thoroughly explained its assessment of those factors. Father does not address those
factors or assign error to the district court’s analysis. Instead, he argues that he “should
have had more time to mend his relationship with his children” and that “[w]ithout that
opportunity the facts upon which the [district] court relied in determining the [children’s]
best interests lack support in the record by clear and convincing evidence.” But the district
court initially authorized an extension of the permanency deadline. Regrettably, father did
not do the work that was necessary to merit the continued existence of that extension,
resulting in the county’s pursuit of termination. On this record, the district court did not
abuse its discretion by concluding that termination o f father’s parental rights is in the
children’s best interests.
III.
Father contends that the termination order should be reversed because he received
ineffective assistance of counsel. In juvenile-protection cases, a parent has a statutory right
to effective assistance of counsel. Minn. Stat. § 260C.163, subd. 3(a) (2020). This court
has relied on criminal caselaw regarding ineffective-assistance-of-counsel claims when
reviewing satisfaction of a statutory right to counsel in a noncriminal context. See, e.g., In
re Welfare of L.B. , 404 N.W.2d 341, 345 (Minn. App. 1987) (applying Strickland in
juvenile-delinquency context); see also Beaulieu v. Minn. Dep’t of Hum . Servs., 798
N.W.2d 542, 550 (Minn. App. 2011) (noting that Strickland analysis is applicable in civil-
commitment context), aff’d on other grounds, 825 N.W.2d 716 (Minn. 2013).
To demonstrate ineffective assistance of counsel in a criminal case , the moving
party must show that (1) “counsel’s performance was deficient” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
An attorney’s representation was deficient if it “fell below an objective standard of
reasonableness.” Id. at 688. Deficient representation is prejudicial if “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. A court need not address both prongs of the
test if one is determinative. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
Father argues that his trial counsel’s performance was deficient because counsel
failed to properly execute a sound trial strategy. S pecifically, counsel’s strategy was to
focus on the limited amount of time that father had to work on his case plan before the
county petitioned to terminate his parental rights. Counsel’s direct and cross-examination
at trial emphasized that the county f iled the termination petition two months earlier than
required under the juvenile -protection statutes. Father argues that trial counsel
misunderstood the applicable statutes and that the county actually filed the termination
petition four months earlier than required. According to father, that argument would have
been more compelling because four months is a “substantial amount of time” in which he
could have made “substantial progress” on his case plan.
We need not decide whether counsel’s performance was deficient because on this
record, there is no reasonable probability that the outcome of the proceeding would have
been different if counsel had argued that the county could have waited four—and not two—
additional months before moving for permanency. Both the guardian ad litem and the
county social worker testified that father would not be able to care for the children within
the “reasonably foreseeable future.” Both witnesses explained that father had made little
progress on his case plan in the ten months since the children were removed from the home.
Again, the record shows that f ather did not enter outpatient treatment after his halfway
house closed, follow the requirements of probation, remain law abiding, or —most
importantly—maintain contact with the children.
In sum, father has not shown that there is a reasonable probability that the outcome
would have been different if his attorney had argued that the county filed the termination
petition four months earlier than required. He therefore is not entitled to relief on his
ineffective-assistance-of-counsel claim.
Affirmed.