In the Matter of the Welfare of the Child of: R. S., 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This opinion is nonprecedential except as provided by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
A21-0877

In the Matter of the Welfare of the Child of: R. S., Parent.

Filed February 22, 2022
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-JV-17-4447

Anne M. Carlson, Anne M. Carlson Law Office, PLLC, St. Paul, Minnesota (for appellant-
father R.S.)

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch , Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent county)

Bonnie Scurry, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
In this post -remand appeal, appellant-father challenges the termination of his
parental rights, arguing that the district court failed to follow this court’s remand
instructions and failed to comply with the requirements of Minn. Stat. § 260C.312(b)
(2020). Father also assigns error to the district court ’s finding that the county made
reasonable reunification efforts and its determination that there was a statutory basis for
termination. We affirm.
FACTS
Appellant R.S. is the father of the child who is the subject of this juvenile-protection
matter. The child was born in 2015 and has been in court-ordered out-of-home placement
since September 2017. The child has a neurodevelopmental disorder and receives special
education services, including speech and occupational therapy, to address behavioral and
cognitive issues. The child’s cognitive skills are below average, and he needs more adult
support than his same -aged peers to meet his daily needs. The child’s mother has a n
extensive history of child-protection involvement, and her parental rights to several other
children have been involuntarily terminated.
In March 2015, respondent Hennepin County Human Services and Public Health
Department (the county) filed a child -in-need-of-protection-or-services (CHIPS) petition
regarding the child, based primarily on mother’s history. Because the parents and child
traveled between Illinois and Minnesota, the child was not located until September 2017.
Authorities took the child into protective custody when they found his parents panhandling
in Minnesota . T he county then petitioned to terminate mother ’s and father’s parental
rights.1
Unlike mother, father did not have a history of child -protection involvement. The
county offered father services and developed a case plan, which required him to establish
paternity, to complete psychological and parenting assessments and follow any ensuing

1 The district court terminated mother’s parental rights to the child in 2018. Mother is not
a party to this appeal.

recommendations, to engage in individual therapy, to obtain safe housing, to participate in
parenting education and apply the skills learned, to refrain from engaging in a relationship
with mother, to attend visitation, and to generally work to meet the child’s needs. Because
father has cognitive deficiencies, the services were intended to assess whether he had the
ability to improve his parenting skills and meet the child’s needs. Father signed his case
plan and began working on its goals.
In August 2018, the district court held a trial on the petition to terminate father’s
parental rights. In October 2018, the district court terminated father’s rights based on three
statutory grounds. In doing so, the district court reasoned that father’s cognitive deficits
rendered him unable to parent. Father moved for a new trial. The district court denied the
motion but made additional findings regarding its termination of parental rights (TPR)
order. Father appealed.
In May 2019, this court reversed the termination, concluding that the evidence was
insufficient to sustain the district court’s finding of a statuto ry basis for termination , and
remanded the case to the district court “for any further proceedings to address custody and
the child’s need for protection or services in light of current circumstances and [father’s]
continued parental rights.” In re Welfar e of Child of S.D.T. , No. A18 -1781, 2019 WL
2079831, at *4 (Minn. App. May 13, 2019).
The same district court judge presided over father’s case on remand. At a hearing
in July 2019 , the county asked to proceed with its original petition to terminate father’s
parental rights . Father asked for reunification or that the matter revert to a CHIPS
proceeding. The district court ordered that the matter would remain a TPR proceeding and
that it would reopen the record to permit additional evidence regarding the original
termination petition . In August 2019, the district court ordered that there would be no
visitation between father and the child because the court wanted “more information
regarding father’s ability to engage in visits.”
In December 2019, th e county filed a new case plan for father , describing the
services and reunification efforts that it had offered . The case plan noted that father had
established his paternity of the child and had completed psychological and parenting
assessments. Those assessments recommended therapy, parenting education, and an Adult
Rehabilitative Mental Health Services ( ARMHS) worker. The plan noted that father had
engaged in parenting education but could not progress further. The plan directed father to
participate in individual therapy, to work with his providers to establish ARMHS services,
to maintain safe housing, to demonstrate that he was not in a relationship with mother, and
to meet the needs of the child.
In February 2020, the county filed an amended TPR petition and added an additional
statutory ground for termination.
In April 2020, the district court authorized supervised visitation between father and
the child, but visitation did not begin until June 2020. Father indicates that he had 30
supervised visits with the child between June 2020 and May 2021.
On several dates between August 2020 and April 2021, the district court held a trial
on the county’s amended petition to terminate father’s parental rights. The district court
heard the testimony of seven witnesses and received approximately 200 exhibits, many
concerning father’s current circumstances and the child’s special needs. Following the
trial, the district court terminated father’s parental rights based on three statutory grounds:
failure to meet parental duties, palpable unfitness, and failure to correct the conditions that
led to the child’s out-of-home placement. The district court found that father had
“demonstrated an inability to ensure the daily needs of his child are met ” due to his
parenting and cognitive deficiencies.
Father moved for a new trial or amended findings. The district court denied that
motion, and father appealed to this court.
DECISION
I.
Father contends that the district court erred by failing follow this court’s remand
instructions. Specifically, he argues that the district court abused its discretion by allowing
the county to pursue relief under its original termination petition , as amended, and to
supplement the record in support of termination.
A district court must adhere to a reviewing court’s remand instructions, and if no
specific instructions are provided, the district court must proceed in a manner consistent
with the remand order. Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Min n.
1982); Bauerly v. Bauerly, 765 N.W.2d 108, 110-11 (Minn. App. 2009); Duffey v. Duffey,
432 N.W.2d 473, 476 (Minn. App. 1988). We review a district court’s compliance with
remand instructions under a deferential abuse -of-discretion standard. Janssen v. Best &
Flanagan, LLP, 704 N.W.2d 759, 763 (Minn. 2005).
After reversing the termination in the first appeal of this matter, this court remanded
the case to the district court “for any further proceedings to address custody and the child’s
need for prot ection or services in light of current circumstances and [father’s] continued
parental rights.” S.D.T., 2019 WL 2079831 , at *4. In allowing the county to pursue the
original termination petition , the district court reasoned that this court did not mandat e
dismissal or reunification and did not direct th at the matter be converted to a CHIPS
proceeding.
This court’s remand instruction was broadly stated. It did not address whether the
district court could reopen the record on the county’s original termination petition. But
that approach has been approved in other cases. For example, in In re Welfare of Forrest,
the supreme court remanded the district court’s denial of termination “for the purpose of
taking further evidence.” 246 N.W.2d 854, 854 (Minn. 1976). And in In re Child of E.V.,
this court reversed a termination and remanded the case to the district court stating, “[u]pon
remand, it remains within the [district] court’s discretion whether to open the record for
the presentation of additional evidence.” 634 N.W.2d 443, 450 (Minn. App. 2001).
In addition, in In re Welfare of Chosa , the supreme court reversed a termination
based on insufficient evidence and stated that “proper authorities ” should “carefully
monitor the situation and promptly seek termination of [the mother’s] parental rights again
if she is unable to meet the challenge of parenthood.” 290 N.W.2d 766, 769 (Minn. 1980).
Similarly, in In re Welfare of Child. of S.R.K., the supreme court determined that the county
had failed to prove a TPR petition and remanded the case to the district court to dismiss
the petition without prejudice, but the supreme court noted that the county remained “free
to bring a new petition at any time.” 911 N.W.2d 821, 832 (Minn. 2018).
In sum, caselaw indicates that a district court is not prohibited from reopening the
record and allowing continued efforts to terminate parental rights on remand after reversal
of a termination order. Given that caselaw and this court’s broadly worded remand
instruction, which authorized “any further proceedings . . . in light of current
circumstances,” the district court did not abuse its discretion by allowing the county to
pursue its original termination petition and to present additional evidence regarding father’s
current circumstances.
II.
Father contends that the district court erred by failing to comply with the
requirements of Minn. Stat. § 260C.312(b). We review the application of a statute to
undisputed facts de novo. Weston v. McWilliams & Assocs., 716 N.W.2d 634, 638 (Minn.
2006).
Minnesota Statutes section 260C.312 (2020) provides:
(a) If, after a hearing, the court does not terminate
parental rights but de termines that the child is in need of
protection or services, or that the child is neglected and in
foster care, the court may find the child is in need of protection
or services or neglected and in foster care and may enter an
order in accordance with the provisions of section 260C.201.

(b) When a child has been in placement 15 of the last 22
months after a trial on a termination of parental rights petition,
if the court finds that the petition is not proven or that
termination of parental rights is not in the child’s best interests,
the court must order the child returned to the care of the parent
unless the court approves the responsible social services
agency’s determination of compelling reasons why the child
should remain out of the care of the parent. If the court orders
the child returned to the care of the parent, the court may order
a trial home visit, protective supervision, or monitoring under
section 260C.201.

Minnesota Statutes section 260C.201 (2020), as referenced in section 260C.312, governs
dispositional orders stemming from a district court’s determination that a child is in need
of protection or services or is neglected and in foster care.
Father notes that the first TPR order was issued in October 20 18. H e therefore
argues that on remand, section 260C.312 required the district court to “approve the
agency’s compelling reasons not to move forward with termination on or before February
1, 2020.”
Father’s argument assumes that “court,” as used in Minn. Stat. § 260C.312, refers
to, or includes, this court. That assumption is inconsistent with statutory definitions that
apply to the terms used in chapter 260C and provide that, with an exception not relevant
here, “‘court’ means juvenile court.” Minn. Stat. § 260C.007, subds. 1, 9 (2020). We need
not resolve th at issue, however, because father fails to allege prejudice arising from the
district court’s failure to make the determination mentioned in section 260C.312(b).
Absent an allegation of prejudice arising from an error allegedly committed by the
district court, there is no basis to reverse the district court. See Midway Ctr. Assocs. v.
Midway Ctr., Inc., 237 N.W.2d 76, 78 (Minn. 1975) (stating that, to obtain relief on appeal,
an appellant must show both error by the district court and prejudice to the appellant arising
from that error); In re Welfare of Children of J.B., 698 N.W.2d 160, 171 (Minn. App. 2005)
(applying Midway in a TPR appeal), rev. dismissed (Minn. May 3, 2005); In re Welfare of
D.J.N., 568 N.W.2d 170, 175-76 (Minn. App. 1997) (stating that, while “[i]t was a mistake
for the [district] court . . . to take judicial notice of the entire [previous juvenile-protection]
files,” because appellants failed to show prejudice, there was no reversible error).
Father does not allege that lack of a “compelling reasons” determination prejudiced
him. In fact, he states that the “exact remedies available to [him] . . . are unclear.” To the
extent that father sugge sts he was prejudiced because section 260C.312(b) precludes
further termination proceedings, we are not persuaded. Section 260C.312(b) contemplates
two scenarios: an order for reunification or a determination that there are “compelling
reasons” why the ch ild should remain in out -of-home placement. S ection 260C.312(b)
does not foreclose the possibility of subsequent termination proceedings. Indeed, shielding
parents from further permanency proceedings after denial of a termination petition —
regardless of t he parents’ circumstances after denial —would be inconsistent with the
paramount consideration in every child-protection proceeding, which is “the health, safety,
and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2020).
In sum, section 260C.312(b) did not prohibit the county from proceeding with its
initial petition to terminate father’s parental rights on remand from this court. And even if
the district court erred by failing to approve a determination of “compelling reasons” to
continue the child’s out -of-home placement, father does not articulate any resulting
prejudice. Thus, the alleged error, if any, does not provide a basis to reverse.
III.
Father contends that the district court erred by finding that the county made
reasonable reunification efforts. Generally, the county must make reasonable efforts to
rehabilitate and reunify the family and eliminate the need for a child’s out -of-home
placement. Minn. Stat. § 260.012(a) (2020). “Reasonable efforts at rehabilitation are
services that 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) (quotations omitted),
rev. denied (Minn. Mar. 28, 2007). We review a district court’s findings as to the county’s
reasonable efforts for clear error . In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 87
(Minn. App. 2012).
In determining whether reas onable efforts have been made, the district court must
consider whether services offered to the 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). The district court must consider “the
length of the time the county was involved and the quality of effort given.” In re Welfare
of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), rev. denied (Minn. July 6, 1990). The
county’s efforts must be aimed at alleviating the conditions that predicated the out-of-home
placement, and the efforts must conform to the problems presented. In re Welfare of S.Z.,
547 N.W.2d 886, 892 (Minn. 1996); H.K., 455 N.W.2d at 532.
The district court made extensive findings regarding the county’s efforts to reunify
the family and address father’s cognitive deficiencies. Those services included written
case plans; monthly meetings and case management ; referrals for psychological,
diagnostic, neuropsychological, and parenting assessments ; therapy; ARMHS services ;
parenting education; travel vouchers; and supervised visitation.
Father argues that the services d irected at his mental -health and cognitive issues
“were not relevant” because those issues did not cause the child’s out-of-home placement.
Although mother’s history of involuntary terminations may have been the impetus for the
county’s concern regarding the child, the district court identified the child’s “unstable
environment,” “risk of harm,” and the parents’ behavioral and mental -health issues as its
reasons for initially placing the child out of the home. Thus, father’s mental-health and
cognitive issues were relevant, and the services offered to father were intended to facilitate
reunification in light of those issues. Moreover, caselaw recognizes that additional
circumstances contributing to a child’s need for protection may be addressed as a juvenile-
protection matter progresses. See In re Welfare of Child of D.L.D., 865 N.W.2d 315, 316
(Minn. App. 2015) (stating that it is possible that “a child cannot safely return home even
though the factual bases for the conditions preventing the child’s return home are not
identical to the factual bases for the conditions that led to the child ’s out -of-home
placement”), rev. denied (Minn. July 20, 2015).
Father also argues that the county damaged his parent -child bond by denying him
visitation and that the county’s services were intended to build a case against him instead
of reunifying him with the child. Father rightly complains that he did not receive visitation
or parenting education for more than a year on remand.
As to visitation, this court remanded the case in May 2019, and supervised visitation
did not begin until June 2020. That delay is highly concerning and undoubtedly affected
the bond between father and the child. The record indicates that the county did not initially
recommend visitation because it intended to promptly supplement the record on remand in
pursuit of a new termination order. And the district court was understandably cautious
about initiating visitation given the length of time that had passed with no contact between
father and the child. The district court wanted input from the child’s therapist regarding
the best way to initiate visitation following the remand. Ultimately, the decision whether
and when to begin visitation on remand was for the district court. On balance, we cannot
say that the district court’s cautious approach to visitation rendered the county’s
reunification efforts unreasonable.
We recognize that the lack of contact between father and the child no doubt damaged
their parent -child bond and made visitation more difficult for each of them. But as
described in section IV of this opinion, the district court’s termination order was not based
on an inadequate parent-child bond. It was based on father’s limited cognitive abilities and
his resulting inability to adequately meet the particular needs of the child. And despite the
visitation delay, father reports that he had 30 visits with the child between June 2020 and
May 2021. He therefore had an opportunity to develop and demonstrate his parenting skills
in a supervised-visitation setting following this court’s remand. We are not aware of any
authority suggesting that a parent must be given an opportunity for unsupervised parenting
time before a district court may terminate paren tal rights. Such an approach could be
inconsistent with the paramount concern in any juvenile -protection matter, which is “the
health, safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a).
As to parenting education, the county did not initially ask father to complete
additional parenting education because it was determined that he had made “as much
progress as possible.” Instead, the county recommended parenting support. But the county
ultimately provided parenting education through “Reach for Resources” during father’s
supervised visits. Father took advantage of that service but declined to engage in other
services offered by the county , such as mental-health therapy. As found by the dis trict
court, father “completed less than a dozen therapy sessions over five years, although his
assessors consistently and unanimously recommended therapy.”
In sum, although the prolonged delay in visitation on remand is concerning, the
district court did not clearly err by finding that the county made reasonable reunification
efforts.
IV.
Father contends that the district court abused its discretion in determining that the
county proved a statutory basis for termination. Minnesota courts will terminate parental
rights only for “grave and weighty reasons.” In re Welfare of M.D.O. , 462 N.W.2d 370,
375 (Minn. 1990). A petitioner bears “the burden of producing clear and convincing
evidence that [a] statutory termination ground[] exists.” In re Welfare of C.K., 426 N.W.2d
842, 847 (Minn. 1988). A district court’s decision in a TPR proceeding must be based on
evidence concerning the conditions that exist at the time of the termination. In re Welfare
of Child of T.D. , 731 N.W.2d 548, 554 (Minn. A pp. 2007), rev. denied (Minn. July 17,
2007). Termination of a parent’s rights is intended for those situations in which it appears
“that the present conditions of neglect will continue for a prolonged, indeterminate period.”
Chosa, 290 N.W.2d at 769.
There are nine statutory grounds for involuntarily terminating parental rights. See
Minn. Stat. § 260C.301, subd. 1(b) (2020). In a TPR appeal, an appellate court examines
the record to determine whether the district court applied the appropriate statutory criteria.
In re Welfare of D.L.R.D ., 656 N.W.2d 247, 249 (Minn. App. 2003). In reviewing a
termination order, we review the underlying findings of fact for clear error and the
determination of whether a statutory ground for termination exists, as well as the court’s
ultimate decision to terminate parental rights, for an abuse of discretion. In re Welfare of
Child of J.H., ___ N.W.2d ___, ___, 2021 WL 5045274, at *3 (Minn. App. Nov. 1, 2021),
rev. denied (Minn. Dec. 6, 2021). We will affirm a district court’s TPR decision if at least
one statutory ground for termination is supported by clear and convincing evidence and
termination is in the best interests of the child, In re Welfare of Child. of R.W., 678 N.W.2d
49, 55 (Minn. 2004), so long as the county made reasonable efforts to reunite the family if
reasonable efforts were required, In re Child. of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).
On remand in this case, the district court terminated father’s rights based on three
statutory grounds. One ground was that father failed to correct the conditions leading to
out-of-home placement. A district court may terminate a parent ’s rights to a child if
“following the child’s placement out of the home, reasonable efforts, under the direction
of the court, have failed to correct the conditions leading to the child’s placement.” Minn.
Stat. § 260C.301, subd. 1(b)(5). A district court presumes that reasonable efforts have
failed if certain circumstances exist. Id.
The district court relied on the statutory presumption and ruled that father “failed to
substantially comply with and benefit from the case plan.” We need not address the
propriety of the district court’s reliance on the statutory presumption because p arental
rights may be terminated under section 260C.301, subdivision 1(b)(5), even in the absence
of that presumption. See, e.g., In re Welfare of Child . of S.E.P., 744 N.W.2d 381, 386
(Minn. 2008) (“[A]lthough the statutory presumption does not strictly apply, it may still
inform our consideration of whether subdivision 1(b)(5) has been met.”). When addressing
whether to terminate parental rights because a parent failed to correct the conditions leading
to a child’s out-of-home placement, “[t]he critical issue is not whether the parent formally
complied with the case plan, but rather whether the parent is presently able to assume the
responsibilities of caring for the child.” J.K.T., 814 N.W.2d at 89.
Here, in terminating father’s parental rights on remand, the district court once again
reasoned that father’s cognitive deficiencies rendered him unable to meet the child’s
special needs and concluded that there were sufficient ground s for termination under
subdivision 1(b)(5). That decision was based, in part, on evidence regarding the additional
assessments and services that the county provided on remand to address father’s cognitive
deficits and to improve his ability to parent his special -needs child. Those additional
assessments included a diagnostic evaluation, a second psychological and adaptive
functioning evaluation, and a neuropsychological evaluation.
In the district court’s second order terminatin g father’s parental rights, the district
court found that father’s “cognitive abilities, including his memory, which are in the second
percentile for his age group, do not allow him to engage in higher-level reasoning—such
as following medication labels’ instructions, signing school permission slips, or following
up on the child’s IEP and special education needs at home. ” Evidence showed that father
needed assistan ce in reading, writing, and unde rstanding “formal verbal information.”
Evidence also showed that father may not know how to respond to a child’s illness and
may struggle in the day -to-day requirements of raising a child . For example, testimony
showed that father did not appreciate the child’s developmental issues and was hesitant to
interact with service providers.
Evidence also showed that father would need long -term assistance from a social
worker to provide for the child’s needs. For example, the doctor who conducted father’s
neuropsychological testing testified that if the child were placed in father’s custody, father
would need significant, long -term parenting assistance to provide a safe home, structure,
and resources, and that such supportive services would likely be necessary un til the child
turns 18. That doctor testified that an assisted-living setting, in which 24/7 care and support
is available, would be ideal. There was no evidence that such assistance was available to
father; in fact, the evidence showed that he had a limited social network. And despite an
assessor’s determination that an ARMHS worker might be the most beneficial resource for
father, he did not cooperate with the county’s attempt to obtain an ARMHS worker.
The district court found that despite the county’s provision of services to improve
father’s parenting deficits, which stemmed from his l imited cognitive abilities, father did
not make adequate improvements . For example, d uring a supervised visit in December
2020, father sprayed Lysol on the chil d’s hands to clean them. Father also did not timely
sign paperwork necessary for the child’s therapy . In fact, father denied that the child
needed services. The district court found that father demonstrated an inability to ensure
that the child’s daily needs would be met in his care. The district court also found that
although father “has been able to make it through short, routine visits with his child while
under professional supervision, he does not have the parenting skills and cognitive ability
to respond to even slight deviations from routine interactions without assistance.” The
record provides clear and convincing support for those findings.
Father argues that the current termination order is based on the same evidence that
this court rejected as sufficient to support a termination in the first appeal. That argument
ignores the district court’s consideration of the additional assessments and services that
were utilized on remand and its consideration of f ather’s current circumstances. The
district court noted that “[f]rom the time of the first trial to the second, the [c]ourt has had
the benefit of additional psycho logical assessments of [father], which allow for a greater
understanding and appreciation of his cognitive skills and adaptive functioning.”
Although the circumstances supporting the district court’s first and second
termination orders are similar, our careful review of the record satisfies us that information
resulting from father’s participation in the additional post-remand assessments and services
provided clear and convincing support for the district court’s conclusion that father’s
cognitive limitations render him unable to meet his child’s particular needs.
Father also argues that the conditions leading to the child’s placement related only
to mother’s child-protection history and that his parental rights cannot be terminated based
on a failure to cor rect those conditions. Once again, t he district court identified father’s
instability, as well as his behavioral and mental -health issues, as reasons supporting the
child’s out-of-home placement. And a district court “ may find that a child cannot safely
return home even though the factual bases for the conditions preventing the child ’s return
home are not identical to the factual bases for the conditions that led to the child ’s out-of-
home placement.” D.L.D., 865 N.W.2d at 316.
In sum, the recor d establishes that father loves his child and has a strong desire to
parent the child. But our review of the record satisfies us that the post-remand proceedings
clearly and convincingly establish that father lacks the capacity to meet the child’s unique
needs as a result of his cognitive limitations , despite his cooperation with the county’s
reasonable reunification efforts. And our review of the district court’s findings satisfies us
that father’s circumstances will continue for a prolonged, indeterminate period. Thus, the
district court did not abuse its discretion by terminating father’s parental rights on the
ground that “reasonable efforts, under the direction of the court, have failed to correct the
conditions leading to the child’s placement.” Minn. Stat. § 260C.301, subd. 1(b)(5) . We
affirm on that ground, without reviewing the other statutory grounds on which the district
court relied or the district court’s best -interests determination, which father does not
challenge on appeal.
Affirmed.