In the Matter of the Welfare of the Children of: C. E. N. and B. C. K., 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This opinion is nonprecedential except as provided by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
A21-0685

In the Matter of the Welfare of the Children of:
C. E. N. and B. C. K., Parents.

Filed November 22, 2021
Affirmed
Segal, Chief Judge

Traverse County District Court
File No. 78-JV-21-28

John E. Mack, New London Law, P.A., New London, Minnesota (for appellant -mother
C.E.N.)

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent
Traverse County Social Services)

Dawn M. Weber, New London, Minnesota (for respondent-father B.C.K.)

Dawn Krump, Tintah, Minnesota (guardian ad litem)

Considered and decided by Segal, Chief Judge; Cochran, Judge; and Klaphake,
Judge.*
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this appeal of the termination of her parental rights to her youngest child,
appellant-mother argues that the district court erred (1) in presuming that she is palpably

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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unfit to be a party to the parent and child relationship based on the involuntary termination
of her parental rights to a nother child under the laws of North Dakota, (2) in concluding
that termination of her parental rights was in the child’s best interests, and (3) by failing to
clearly articulate the statutory basis for terminating mother’s parental rights. Because we
conclude that appellant forfeited certain issues and that the record supports the district
court’s findings, we affirm.
FACTS
Appellant-mother C.E.N. is the mother of a child born in 2020 . Mother was the
child’s primary caregiver until the child was removed from her care at the start of these
proceedings in February 2021.1 In addition to the child, mother has six other children. The
five oldest children, none of whom are involved in this proceeding, live with their maternal
grandmother and are not in mother’s custody. Mother’s parental rights were terminated
involuntarily to the sixth child under the laws of North Dakota in June 2020.
Mother has a history of methamphetamine use. Since 2017, she has participated in
inpatient residential treatment at four facilities but has relapsed after each treatment. Her
struggles with drug use have led to involvement by child protective services in Minnesota
and North Dakota.
The child involved in the North Dakota termination of parental rights (TPR) action
was removed from mother’s custody at birth in 2019 due to mother’s history of drug use
and her failure s to obtain counseling, follow treatment recommendations, and maintain

1 The child’s father was not living with the child’s mother, and the father’s parental rights
are not at issue.
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stable housing. A petition to terminate mother’s parental rights was filed in North Dakota
after mother failed to follow through on reunification recommendations. The North Dakota
district court granted the petition by default after mother missed three court hearings. The
court found by clear and convincing evidence that the child was a “deprived child” under
North Dakota law, that deprivation was likely to continue, and that the child was “subjected
to aggravated circumstances,” including prenatal drug exposure.2 The North Dakota court
also found that it was in the best interests of the child to terminate mother’s parental rights.
The North Dakota court issued its order involuntarily terminating mother’s parental rights
to that child in June 2020.
Mother completed her most recent inpatient treatment program in January 2020 .
The treatment program was in Minnesota. After completing the treatment program, she
lived in a sober living community in Minnesota until May 2020, when the child involved
in the current proceeding was born (hereafter, the child). Around that time, mother moved
with the child to live with her mother who also resides in Minnesota.

2 Under the version of the North Dakota TPR statute in effect at the time, a district court
could terminate parental rights of a parent to a “deprived child” when the conditions and
causes of the deprivation were likely to continue and cause harm to the child, or where the
child was “subjected to aggravated circumstances.” N.D. Cent. Code § 27-20-44.1.b-.c
(2020). The phrase “deprived child” is defined in the applicable version of the North
Dakota statutes as a child who, among other things, “[i]s without proper parental care” or
“[w]as subject to prenatal exposure to . . . any controlled substance.” N.D. Cent. Code
§ 27-20-02.8.a, .f (2020). “Aggravated circumstances” include a parent’s failure “to make
substantial, meaningful efforts to secure treatment for the parent’s addiction” for a specific
time period. N.D. Cent. Code § 27-20-02.3.b (2020). Portions of these statutes have since
been amended to use different terminology. See 2021 N.D. Laws ch. 245, §§ 23, 45.
4
In early February 2021, respondent Traverse County Social S ervices (the county)
received allegations that mother was using methamphetamine through intravenous
injections and was using while the child was present. The county contacted mother that
day and attempted a follow -up visit the next day. When the county r epresentatives went
to mother’s residence the next day, they learned that mother had left along with the child.
One day later, on February 11, the county filed a joint child-in-need-of-protection-or-
services (CHIPS) and TPR petition in Minnesota district court. The petition alleged as one
of the grounds for the TPR that termination was appropriate because mother ’s parental
rights to another child had been terminated involuntarily. The petition cited Minn. Stat.
§ 260C.503, subd. 2(a)(4) (2020). On February 12, mother and the child were found in
another county in Minnesota, and the child was placed into emergency protective care.
A trial on the TPR petition was held in April 2 021. The district court heard
testimony at the trial from mother, a county social worker, the guardian ad litem, and two
counselors who had worked with mother. While mother admitted at trial that she had used
methamphetamine six times between November 2020 and February 202 1, she denied she
had used after February 2021. B ut an addiction counselor who worked with mother
testified that mother admitted to her in April 2021 that mother was using methamphetamine
daily if it was available . The testimony also established that , after a positive test for
methamphetamine in February 2021, mother did not take scheduled drug tests when she
met with the social worker. The evidence further showed that mother failed to follow
through with the recommendation from the chemical-dependency assessor to attend
inpatient residential dependency treatment. Other evidence at trial showed that mother had
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obtained her own apartment where she had been living for at least a month before the start
of the trial. Mother acknowledged, however, that a person with a criminal history involving
drugs would stay with her “every other day ,” but also claimed that he had not stayed with
her for two or three weeks. The cou nty submitted evidence that the person’s criminal
history included a sex offense.
The social worker testified that mother has a loving relationship with the child and
that the child reacts very well to his visits with her. The social worker noted that mo ther
appeared to be under the influence of drugs only at her first visit with the child and that
subsequent visits went well. The social worker and the guardian ad litem, nevertheless,
both recommended termination of mother’s parental rights to the child.
The district court terminated mother’s parental rights to the child. In so doing,
however, the district court noted that while mother
shall have no further right to visitation or contact with the child
unless expressly authorized by . . . County Social Services or
ordered by the Court, . . . given the bond between mother and
child, the Court has no objection in principle to [mother]
continuing to have contact with the child during his minority,
provided his guardian feels this is in his best interests.

Mother now appeals the termination decision.
DECISION
Mother challenges the termination of her parental rights on several grounds. First,
she claims that the district court erred by applying the statutory presumption that she was
palpably unfit to parent the child under Minn. Stat. § 260C.301, subd. 1(b)(4) (2020),
because the North Dakota TPR statute is not similar to Minnesota’s TPR statute. For her
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second argument, mother claims that the district court erred in concluding that termination
was in the best interests of the child because the district court did not give sufficient weight
to the importance of mother and child’s support system. Mother’s third argument relates
to an error in the statutory grounds cited by the county as the basis for th e TPR petition.
Mother claims that this caused confusion and that the district court failed to clearly
articulate the statutory basis for the termination decision.
A district court may terminate parental rights upon clear and convincing evidence
of the existence of at least one of the statutory grounds for termination. Minn. Stat.
§ 260C.317, subd. 1 (2020). On appeal from a district court’s decision to terminate parental
rights, we 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 parental rights is present for an abuse of disc retion.” In re
Welfare of Child. of J.R.B. , 805 N.W.2d 895, 901 (Minn. App. 2011), rev. denied (Minn.
Jan. 6, 2012). “We give considerable deference to the district court’s decision to terminate
parental rights. But we closely inquire into the sufficien cy of the evidence to determine
whether it was clear and convincing.” In re Welfare of Child. of S.E.P., 744 N.W.2d 381,
385 (Minn. 2008) (citations omitted). “The child’s best interests, however, remain the
paramount consideration in every termination case.” In re Welfare of M.D.O., 462 N.W.2d
370, 375 (Minn. 1990).

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I. Mother’s argument that the district court erred by applying a presumption of
palpable unfitness is not properly before this court and the district court did
not abuse its discretion in determining that mother was a palpably unfit parent.

Application of Presumption

On appeal, mother argues for the first time that the district court erred in applying a
presumption of palpable unfitness in this case. Under Minn. Stat. § 260C.301,
subd. 1(b)(4), a district court may terminate parental rights based on a finding that “a parent
is palpably unfit to be a party to the parent and child relationship .” That section of the
statute provides for a rebuttable presumption of palpable unfitness “upon a showing that
the parent’s parental rights to one or more other children were involuntarily terminated .”
Minn. Stat. § 260C.301, subd. 1(b)(4).
The presumption i mposed by the statute , however, “is easily rebuttable.” In re
Welfare of Child of J. A. K. , 907 N.W.2d 241, 245 (Minn. App. 2018) (quoting In re
Welfare of Child of R.D.L. , 853 N.W.2d 127, 137 (Minn. 2014)) , rev. denied (Minn. Feb.
26, 2018). The presumption
imposes only a burden of production, which means that a
parent may rebut the statutory presumption merely by
introducing evidence that would justify a finding of fact that
[the parent] is not palpably unfit . In other words, a parent
seeking t o rebut the statutory presumption needs to produce
only enough evidence to support a finding that the parent is
suitable to be entrusted with the care of the [child].

Id. at 245-46 (quotations and citations omitted).
The district court here applied the presumption because mother’s parental rights to
another child were involuntarily terminated in North Dakota and concluded that mother
failed to rebut that presumption. Mother challenges the district court’s determination ,
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arguing for the first time that th e district court was wrong to rely on the involuntary
termination from North Dakota because the North Dakota statute is not similar to
Minnesota’s TPR statute.
The applicable section of Minnesota’s statute provides:
It is presumed that a parent is palpab ly unfit to be a party to the
parent and child relationship upon a showing that the parent’s
parental rights to one or more other children were involuntarily
terminated or that the parent’s custodial rights to another child
have been involuntarily transfer red to a relative under Minnesota
Statutes 2010, section 260C.201, subdivision 11, paragraph (e),
clause (1), section 260C.515, subdivision 4, or a similar law of
another jurisdiction.

Minn. Stat. § 260C.301, subd. 1(b)(4) (emphasis added).
Mother argues that the phrase “a similar law of another jurisdiction” quoted above
means that the North Dakota statute must be a “similar law” to the Minnesota TPR statute
for the presumption to apply.3 Mother did not, however, assert this issue before the district
court. And while the district court reviewed the provisions of the North Dakota TPR statute
to assess commonalities between the circumstances that caused the termination action in
North Dakota and mother’s current cir cumstances, the district court did not address the
issue mother now raises. “A reviewing court must generally consider only those issues
that the record shows were presented and considered by the trial court in deciding the

3 Mother also asserts that “[a] termination utilizing the presumption of unfitness is subject
to strict scrutiny,” and that therefore, the similarity between the two statutes is as well.
This appears to be a misinterpretation of the R.D.L. case that mother cites. In that case, the
supreme c ourt applied strict scrutiny when deciding a constitutional challenge to the
statute, Minn. Stat. § 260C.301, subd. 1(b)(4). R.D.L., 853 N.W.2d at 133. The supreme
court upheld the statute. Id. at 138. This does not mean, however, that each termination
under the statute is subject to strict scrutiny.
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matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted);
see In re Welfare of Child of A.I., 779 N.W.2d 886, 894 (Minn. App. 2010) (applying Thiele
on appeal from a termination of parental rights). Because the issue was neither presented
to nor considered by the district court, we decline to consider this argument now.
Palpable Unfitness
We nevertheless conclude that, even if we were to agree with mother that it was
error to apply the presumption in this case, the district court did not abuse its discre tion in
terminating her parental rights to the child. Indeed, it appears that, in addition to evaluating
whether mother rebutted the statutory presumption of palpable unfitness, the district court
determined that mother was palpably unfit independent of the presumption. Here, aside
from addressing whether mother rebutted the presum ption, the district court made
credibility findings and made findings of fact that resolved conflicts in the evidence. Thus,
in the interests of justice, we will address the merits of the district court’s palpable unfitness
determination. See Minn. R. Civ. App. P. 103.04 (noting that appellate courts may address
questions in the interests of justice).
The district court focused its analysis on mother’s ongoing issues with drug use,
failure to follow recommendations for obtaining additional treatment , instability in her
housing situation, and the fact that both the guardian ad litem and the county social worker
recommended termination of mother’s parental rights to the child. For example, the district
court noted that mother admitted she had used methamp hetamine six times between
November 2020 and February 2021, but discounted her testimony that she had not used
after February 2021. The district court instead credited the testimony of mother’s addiction
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counselor that, on April 12, 2021, mother admitted to the counselor that mother would use
methamphetamine daily if it was available and had used as recently as 24 hours before their
meeting. The district court also found it significant that mother failed to take any of the
drug tests scheduled by the coun ty social worker after the positive drug test in February
2021.
The district court acknowledged mother’s argument that she successfully completed
inpatient treatment in January 2020, but noted that mother admitted that she did not return
to treatment since the county filed the current TPR petition despite having the opportunity
to do so. See M.D.O., 462 N.W.2d at 377 (noting that termination cases are concerned with
conduct or conditions “existing at the time of the hearing”). The district court also found
that mother lacked good reasons for her failure to follow through with the recommendation
that mother enter residential dependency treatment. And although mother testified that she
“[goes] to meetings” to address her chemical use, she did not explain what type of meetings
or otherwise elaborate on her efforts to be sober. See In re Welfare of N.M.C., 447 N.W.2d
14, 17 (Minn. App. 1989) (affirming the district court’s dismissal, without an evidentiary
hearing, of petitions to vacate a TPR when the petitions failed to allege sufficient facts to
support the petition); cf. In re Civ. Commitment of Poole , 921 N.W.2d 62, 68-69 (Minn.
App. 2018) (citing several cases supporting th e idea that “[g]enerally, courts have ruled
that mere conclusory assertions are insufficient to avoid an adverse ruling”) , rev. denied
(Minn. Jan. 15, 2019).
Finally, while mother had been in her own apartment for approximately a month as
of the date of trial , the district court observed that she has “lived in three separate places
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since June 2020” and , in February 2021, left her residence “at the drop of a hat to avoid
child protective services.” The court also found that a person with a criminal record that
includes a sex offense stayed at least “every other day” with mother in the apartment.
In sum, the district court found that the circumstances that caused the North Dakota
TPR remained largely unchanged. This finding is supported by the record and we discern
no abuse of discretion by the district court in its conclusion that mother is palpably unfit to
be a party to the pa rent and child relationship , that her unfitness precludes her from
adequately caring for the child, and that these conditions are likely to continue for the
reasonably foreseeable future.
II. The district court did not abuse its discretion in concluding that termination of
mother’s parental rights was in the child’s best interests.

Mother argues that the district court’s analysis of the child’s best interests was
flawed because the district court failed to give adequate weight to mother’s claim that she
and the child had a strong support system.
“In analyzing the best interests of the child, the court must balance three factors:
(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 also Minn. R. Juv. Prot.
P. 58.04(c)(2)(ii). A district court “must consider a child’s best interests and explain its
rationale in its findings and conclusions.” In re Tanghe, 672 N.W.2d 623, 626 (Minn. App.
2003). “We review 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.
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Mother does not argue that the district court failed to consider any of the three best-
interests factors. Instead, she argues that the district court erred by failing to give greate r
weight in its analysis to the fact that the child’s maternal grandmother and five half-siblings
provide a support system for mother and the child. In support of her argument, m other
cites testimony describing the strong relationship between the child and his relatives. But
“[d]etermination of a child ’s best interests is generally not susceptible to an appellate
court’s global review of a record, and 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 J.L.L. , 801 N.W .2d 405, 414 (Minn. App. 2011) (quotations
omitted), rev. denied (Minn. Jul y 28, 2011) . And we defer to a district court’s
determinations of witness credibility and the weight to be given to evidence. Id. at 413;
see In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).
The district court acknowledged the bonds between the child and his mother,
siblings, and grandmother, but noted that “there are other troublesome factors here that are
harmful for the child’s health and wellbeing.” The court observed that “[t]he likely
continued exposure of [ the child] to methamphetamine, and drug use ge nerally (which
necessarily involves criminal activity), will be unhealthy and likely damaging to his
mental, moral, emotional, and physical health.” The district court also noted the
recommendation of the child’s guardian ad litem that it is in the child’s best interests to be
raised in a stable, drug-free environment.
On this record, w e conclude that the district court’s findings of fact regarding the
child’s best interests are supported in the record and that mother’s claim related to the
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child’s support system is not sufficient to establish an abuse of discretion by the district
court. See J.R.B., 805 N.W.2d at 905-06 (affirming finding that termination was in child’s
best interests despite an “extended-family support system” because of parents’ inability to
provide stability); cf. In re Welfare of Child of J. R. R. , 943 N.W.2d 661, 669 -70 (Minn.
App. 2020) (reversing best -interests finding supported only by “mother’s conclusory
assertions”).
III. The district court articulated a clear statutory basis for termination.

Finally, mother asserts that the county miscited the statutory grounds for termination
in its TPR petition and claims that the district court failed to clearly articulate the statutory
grounds for the termination order. Mother argues that the county cited in its petition the
wrong section of the statute as its statutory basis for termination.4 Mother points out that
the county’s petition cited Minn. Stat. § 260C.503, subd. 2(a)(4). This section provides
that when “the child’s parent has lost parental rights to another child through an order
involuntarily terminating the parent’s rights,” the “responsible social services agency must
ask the county attorney to immediately file a termination of parental rights petition.” Minn.
Stat. § 260C.503, subd. 2(a)(4).
The county agrees that it cited to the wrong section of the statute and that the petition
should have cited Minn. Stat. § 260C.301, subd. 1(b)(4), which is the provision setting out

4 Mother also notes that the two other bases for termination cited by the county in the TPR
petition were grounds for a djudicating a child as CHIPS, not grounds for a TPR. The
county, however, filed petitions both for CHIPS and a TPR. Thus, it appears that the
citations to the CHIPS grounds were proper.
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the authority of the court to terminate parental rights when a parent is found to be palpably
unfit.
Mother claims that th e citation error caused confusion and that the district court’s
TPR order is thereby deficient because it failed to clearly articulate the statutory ground
for the termination of mother’s parental rights. The county counters that, while it miscited
the statutory provision in the petition, mother never raised the issue before the district court
and there was no confusion at the trial. The county maintains that mother knew that the
basis for the action was mother’s palpable unfitness based on Minn. Stat. § 260C.301,
subd. 1(b)(4), and that the district court’s order addresse s that statutory basis for
termination.
A TPR petition must state “a prima facie case in support of termination of parental
rights.” Minn. R. Juv. Prot. P. 55.03, subd. 2(c). As addressed above, however, appellate
courts do not generally consider issues that were not raised and considered in the district
court. Thiele, 425 N.W.2d at 582; A.I., 779 N.W.2d at 894 . And because mother never
raised this issue before the district court, we decline to address it.
We note, however, that even if this issue were properly before this court, any error
would be , at most , harmless. At trial, the parties presented arguments about mother’s
palpable unfitness. Further, the district court’s order and memorandum cited Minn. Stat.
§ 260C.301, subd. 1(b)(4), and the memorandum was unambiguously clear that this
provision was the basis for the termination of mother’s parental rights. The district court
discussed mother’s palpable unfitness in its order and the language that mother complains
is “vague about [the district court’s] legal basis” directly mirrors the correct section of the
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termination statute on palpable unfitness, Minn. Stat. § 260C.301, subd. 1(b)(4). And the
court expressly states in its memorandum that Minn. Stat. § 260C.301, subd. 1(b)(4),
provides the statutory ground for termination. We would, therefore, reject this argument
if it was properly before this court.
Affirmed.