, A21-0923

This opinion is nonprecedential except as provided by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
A21-0922, A21-0923

In the Matter of the Welfare of the Children of:
A. L. R., T. D. C. and J. D. M., Parents.

Filed December 13, 2021
Affirmed
Connolly, Judge

Chippewa County District Court
File Nos. 12-JV-21-7, 12-JV-20-71

Douglas D. Kluver, Kluver Law Office and Mediation Center, P.L.L.C., Montevideo,
Minnesota (for appellant A. L. R.)

Krystal M. Lynne, Stermer & Sellner, Chtd., Montevideo, Minnesota (for appellant J. D.
M.)

Matthew Haugen, Chippewa County Attorney, Montevideo, Minnesota (for respondent
county)

Thomas J. Nolan, Jr., Nolan Law Offices, Minneapolis, Minnesota (for Guardian ad Litem)

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
In these consolidated termination -of-parental-rights (TPR) appeals, the mother of
Child 1, Child 2, and Child 3 challenges the district court’s determinations that she is a
palpably unfit parent, that termination of her parental rights is in her children’s best
interests, and that respondent Chippewa County Family Services (CCFS) made reasonable
efforts to reunite the family (A21-0922); the father of Child 3 challenges the determinations
that he neglected to comply with the duties imposed by the parent -child relationship, that
his TPR is in Child 3’s best interest, and that CCFS made reasonable efforts to reunite the
family; he also argues that the district court erred in admitting the children’s out-of-court
statements under Minn. Stat. § 260C.165 (2020). Because we see no abuse of discretion
in the TPRs and no error in the district court’s admission of the statements, we affirm.
FACTS
Appellant A.L.R. is the mother of Child 1, an 11 -year-old girl born in 2010; Child
2, a 9-year-old girl born in 2012; and Child 3, a 7 -year-old boy born in 2014. Appellant
J.D.M. is the father of Child 3. 1 In November 2019, A.L.R. accused J.D.M. of sexually
assaulting Child 1, who was then nine; she recorded her accusation. In December 2019,
J.D.M. was arrested.
In February 2020, Child 1 disclosed to a school social worker that J.D.M. was living
in A.L.R.’s house and was not supposed to be there, that she was afraid to go to sleep with
J.D.M. in the house, and that J.D.M. had touched her sexually. The incident was reported
to the police, and the following day Child 1 had a forensic interview, in which she said that
(1) J.D.M. had sexually abused Child 1, putting his “private” on and in her “private,” which
hurt, and “white stuff” came out of his private, ( 2) this happened before J .D.M. went to
jail; (3) J.D.M. told Child 1 not to say anything about the incident; (4) when Child 1 told
A.L.R. about the incident, A.L.R. did not believe her; (5) A.L.R. told Child 1 and Child 2

1The father of Child 1 and Child 2 voluntarily terminated his parental rights to them in
March 2021.
not to say anything about what had happened to Child 1; (6) A.L.R. would beat Child 1 if
she found out that Child 1 told anyone; (7) A.L.R. used to beat the children with a belt that
she still had, but she no longer used the belt; and ( 8) Child 1 had another incident with
J.D.M. when he got out of jail. The children were taken into protective care; a petition was
filed to have them be declared children in need of protection or services (CHIPS); and
J.D.M. was incarcerated.2 In March 2020, the children were adjudicated CHIPS, and their
control was transferred to CCFS.
In January 2021, a TPR petition was filed for A.L.R. and J.D.M. Following a trial,
the district court terminated the parental rights of A.L.R. on the ground of palpable
unfitness to be part of the parent-child relationship and of J.D.M. on the ground of neglect
or refusal to comply with the duties imposed by the parent -child relationship. They filed
notices of appeal of the TPRs, and this court consolidated their appeals.
On appeal, A.L.R. argues that (1) the finding that she was palpably unfit to be a
party to the parent -child relationship is not supported by clear and convincing evidence,
(2) the termination of her parental rights is not in her children’s best interests, and (3) CCFS
did not make reasonable efforts to reunite her family; J.D.M. argues that (4) the finding
that he neglected to comply with the duties imposed by the parent-child relationship is not
supported by clear and convincing evidence, (5) the termination of his parental rights is not

2 The criminal charges relating to sexual assault were eventually dismissed but in this case
the district court concluded that J.D.M. had committed domestic child abuse against Child
1.
in Child 3’s best interest, (6) CCFS did not make reasonable efforts to reunite h is family,
and (7) the district court erred in admitting the children’s out-of-court statements.
DECISION
Appellate courts “aff irm the district court’s termination of parental rights when at
least one statutory ground for termination is supported by clear and convincing evidence
and termination is in the best interests of the child, provided that the county has made
reasonable efforts to reunite the family.” In re Welfare of Children of S.E.P., 744 N.W.2d
381, 385 (Minn. 2008) (citations omitted). This court reviews the district court’s factual
findings for clear error, but reviews its determination of whether a particular statutory basis
for termination exists for an abuse of discretion. In re Welfare of Children of J.R.B. , 805
N.W.2d 895, 901 (Minn. App. 2011), rev. denied (Minn. Jan. 17, 2012). We also “review
a district court’s ultimate determination that termination is in a child’s best interest for an
abuse of discretion.” Id. at 905. In TPR cases, “[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).
[C]lear-error review does not permit an appellate court to
weigh the evidence as if trying the matter de novo. . . . [A]n
appellate court need not go into an extended discussion of the
evidence to prove or demonst rate the correctness of the
findings of the trial court. Rather, . . . an appellate court’s duty
is fully performed after it has fairly considered all the evidence
and has determined that the evidence reasonably supports the
decision.

In re Civil Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn. 2021) (quotations and
citations omitted).
1. ALR’s Palpable Unfitness
The district court may terminate parental rights if it finds
that a parent is palpably unfit to be a party to the parent and
child rela tionship because of a consistent pattern of specific
conduct before the child or of specific conditions directly
relating to the parent and child relationship either of which are
determined by the court to be of a duration or nature that
renders the parent unable, for the reasonably foreseeable
future, to care appropriately for the ongoing physical, mental
or emotional needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4) (2020). The district court found that: (1) A .L.R.
knew that J.D.M. was sexually abusing Child 1 and, by denying the abuse and doing
nothing about it, she neglected to care for Child 1’s physical and mental needs; (2) the
physical discipline A.L.R. had previously used, i.e., hitting the children with a belt that left
marks on them, was domestic child abuse under Minn. Stat. § 260C.007, subd. 13 (2020);3
and (3) A.L.R. continued to disbelieve the children despite clear and convincing evidence
that they had experienced significant trauma caused by J.D.M., a man she let reside in her
home. The record supports these findings. The district court also concluded that ALR’s
“dishonesty with figures and institutions responsible for [her] compliance suggest that she
may for the reasonably foreseeable future disregard the reasonable requests by [CCFS] and
Court orders for protective action.”

3 The district court noted that the children’s guardian ad litem (GAL) had testified that “all
three children made statements regarding physical abuse perpetrated against them by
[A.L.R.]. These statements were consistent even when [the children were] interviewed
separately.”
Moreover, a parent may be found to be palpably unfit because of a causal connection
between the parent’s substance use and the inability to parent children. In re Welfare of
the Children of T.R., 750 N.W.2d 656, 662 (Minn. 2008). The relevant time period for a
finding of palpable unfitness includes all time up to the termination hearing. In re Welfare
of M.A., 408 N.W.2d 227, 232 (Minn. App. 1987), rev. denied (Minn. Sept. 18, 1987). To
be a basis for termination, the palpable unfitness must be expected to continue for “the
reasonably foreseeable future.” Minn. Stat. § 206C.301, subd. 1(b)(4). The district court
ordered A.L.R. to abstain from alcohol, and she understood that this was a condition of the
children being returned to her. The district court found that, although A .L.R. had made
“progress in her path to sobriety,” (1) she was seen with J.D.M. at a liquor store three days
before the trial, (2) she testified that court orders and the risk of jail were not enough to
keep her sober, and (3) she failed to comply with court orders to abstain from alcohol and
to notify CCFS of her relapses. The district court concluded that “[b]ecause [A .L.R.] was
unable to demonstrate accountability in her progress towards sobriety, she was unable to
be reunited with her children.”
A.L.R. argues that her use of alcohol is not a barrier to reuniting her with her
children. At trial , she testified that she did not co mplete some tests because she did not
trust CCFS and that she previously lied to the court in saying that one positive urinalysis
test was due to her taking medication when it was actually due to her consumption of
alcohol. A.L.R. also argues that: (1) the district court erred in finding that she had relapsed
because “[a] relapse for alcohol requires more extensive use than just drinking a few
alcoholic beverages”; (2) she had only “three small slips,” one of which was shortly before
the TPR trial; and (3) “[her] diagnosis does not mean she needs to permanently abstain
from alcohol use.” She provides no legal or other support for any of these arguments. We
decline to reach inadequately briefed issues. State Dep’t of Lab. & Indus. v. Wintz Parcel
Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997). The district court did not abuse its
discretion in finding that A .L.R.’s refusal to abstain from alcohol when she knew that
abstinence was a requirement for having her children returned to her was an indication of
palpable unfitness.
Clear and convincing evidence of A .L.R.’s physical abuse of the children, her
failure to address J .D.M.’s sexual abuse of Child 1, and her continuing use of alcohol
supports the finding that A .L.R. is palpably unfit to be a party to the parent and child
relationship and provides a basis for her TPR. “[A] trial court may involuntarily terminate
parental rights when only one criterion [for termination] is proven.” In re Welfare of Child
of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).
2. The Best Interests of the Children
Appellate courts “apply an abuse -of-discretion standard of review to a d istrict
court’s conclusion that termination of parental rights is in a child’s best interests.” In re
Welfare of Child of A.M.C., 920 N.W.2d 648, 657 (Minn. App. 2018).
The children have been in court -ordered out -of-home placement since February
2020. The district court found that they “are adjusting well to placement,” including being
excited about activities with their foster parents, who are “helping the children learn coping
skills.” Child 2 and Child 3 are together in the same home. Child 1 has had suicidal
ideation with a plan and is in treatment with support; the district court noted that “once [her
mental health] needs have been addressed, it is anticipated that Child 1 will return to the
same placement as Child 2 and [Child] 3.”
In light of the se and other findings, the district court concluded that “ [i]t is in the
best interests of the [c]hildren to terminate [A.L.R.]’s parental rights.” The best interests
of the children are the paramount consideration in a TPR case. Minn. Stat. § 260C.301,
subd. 7 (2020). The district court also concluded that the children have no interests
competing with, or conflicting with, the termination of A.L.R.’s parental rights. 4 Where
the interests of parent and child conflict, the interests of the child are par amount. Id. The
district court noted that the GAL testified that it is in the best interests of the children that
A.L.R.’s parental rights be terminated and did not abuse its discretion by agreeing with that
testimony.
3. Services provided by CCFS
In TPR cases, a district court must ensure that the county makes reasonable efforts
to reunite a family and determine whether tho se efforts have failed. Minn. Stat.
§ 260.012(a) (2020); see Minn. R. Juv. Prot. P. 58.04(c)(2)(i) (requiring the district court
to make findings regarding reunification efforts or that those efforts were not required).
Here, we reject A.L.R.’s assertion that the county failed to make those efforts. The district
court’s order lists 63 services provided by CCFS and notes that A.L.R. “failed to cooperate
with multiple case plans.” Testimony from a social worker, a chemical case manager, a

4 A.L.R. argues that this statement is error because the district court should have considered
the children’s other interests, such as staying together. But the district court did address
this, noting that Child 2 and Child 3 are together and that Child 1 is not with them now
because of her need for mental-health treatment, but will hopefully rejoin them later.
counselor, and a GAL, all of whom the district court found to be credible witnesses,
provided further evidence of CCFS’s efforts on behalf of this family.
A.L.R. was shown to be palpably unfit for the parent -child relationship; it is in the
children’s best interests to terminate her rights to them, and CCFS made reasonable but
unsuccessful efforts to reunite the family.
4. J.D.M.’s Neglect to Comply with the Du ties of the Parent and Child
Relationship

A district court may terminate parental rights if it finds
that the parent has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon
that parent by the parent and child relationship, . . . if the parent
is physically and financially able, and . . . reasonable efforts by
the social services agency have failed to correct the conditions
that formed the basis of the [TPR] petition.

Minn. Stat. § 260C.301, subd. 1(b)(2) (2020). The district court found that J.D.M. refused
to sign a case plan provided by CCFS, which provided or attempted to provide visitation
with the child, an out of home placement plan, a rule 25 assessment, parenting classes, and
a diagnostic assessment. 5 The district court noted that “ [w]hile [J.D.M.’s] incarceration
complicated what services could be provided, CCFS provided [him] with alternatives that
could satisfy the case plan. . . . CCFS explained the services to [J .D.M.] and he refused to
sign the [document] needed to start services.” The district court found further that:
[J.D.M.] refused to cooperate with reasonable requests from
CCFS because ‘he didn’t feel like he had to.’ J.D.M. has stated
that he does not need parenting classes because he is a good

5 He did sign a case plan on March 8, 2021, shortly before trial.

parent and would not participate in his parenting education
option.

. . . .
CCFS requested J .D.M. to submit to a psychosexual
evaluation that he never completed. At trial, J .D.M. accused
CCFS of not knowing what a psychosexual evaluation was and
[said] that he did not do it because he is not a “chomo” or child
molester.

Testimony from the chemical case manager indicated that J .D.M. failed to complete a
chemical use assessment. Child 1 repeatedly and consistently described J .D.M.’s sexual
abuse of her and said in her interview that she believed he was still in A .L.R.’s residence
and in A.L.R.’s room because A.L.R. carried two plates of food, beers, cups of coffee, etc.
into the room, and Child 1 had heard J.D.M.’s voice.
J.D.M. argues that he was the non-custodial parent of Child 3 and that, in any event,
there was no evidence that Child 3 was neglected, there were no noted developmental
delays with Child 3, and there are no ongoing medical concerns regarding Child 3. But the
district court found from the testimony of caregivers that:
Child 3 has been struggling with mental health symptoms,
including emotional identification and emotional regulation.
[He] also has instances of enuresis and encopresis, which have
no related physical health causes. . . . [He] works with an in -
home skills worker to identify and regulate emotions and
continues to see an individual therapist to address ongoing
mental health symptoms that appear to be trauma related, per
his individual therapist.

. . . .

. . . Child 3 was recently tested for the need for
additional assistance in the classroom and is now receiving
special education services.

J.D.M. also argues that his failure to complete a psychosexual evaluation is not an
issue because “this only become s an issue if [he] either admitted or was found to have
sexually abused someone” and “there was no admission by [himself] that he ever abused
Child 1.” We disagree. As the district court noted, Child 3 was in the house when this
happened, and by abusing Child 1, J.D.M. “create[d] a dangerous environment for his child
(Child 3),” thus neglecting to comply with the duties imposed by the parent -child
relationship.
J.D.M. also claims there was no evidence that he refused to provide food, clothing ,
or other care for Child 3, but he does not explain how he did this while incarcerated. A
district court may consider the fact of incarceration in conjunction with other evidence
supporting a TPR petition. In re Welfare of A.Y. -J., 558 N.W.2d 757, 761 (Minn. App .
1997), rev. denied (Minn. Apr. 15, 1997).
J.D.M. has also moved to Nebraska, and he does not explain how he would provide
for Child 3, who is in Minnesota; he says only that Child 3 should have been returned to
A.L.R. J.D.M. also claims to have substantially complied with his case plan and says this
is all the law requires. While this is true, the district court found that J .D.M. did not
substantially comply: while he claimed to have worked with various social service agencies
towards reunification, he did not substantiate any of those claims, and his completion of an
anger management program was not enough to establish substantial compliance.
The district court did not abuse its discretion in finding that J .D.M. has refused or
neglected to comply with the duties imposed by his parent-child relationship with Child 3.

5. Best Interests of the children
J.D.M. says that both he and A.L.R. have “a vested interest in preserving the parent-
child relationship” and that the district court “never even weighed the competing interest
factors for or against termination of parental rights, which is itself clearly erroneous.” But
the best interests of the children are the paramount consideration in a TPR case, and, if the
interests of children and parents conflict, the interests of the children are paramount. Minn.
Stat. § 260C.301, subd. 7. Thus, the district court did not need to weigh the intere sts of
J.D.M. and A .L.R. against the needs of the children because, by statute, the children’s
needs are paramount.
The district court found that , “Given [ J.D.M.’s] history of noncompliance with
[c]ourt orders, dishonesty with law enforcement, and meeting with [A.L.R.] just prior to
trial, the [c]ourt is not convinced that [J.D.M.] will comply with court orders or reasonable
requests by CCFS toward reunification” and that “[b]oth [CCFS] and [the GAL] believe it
is in the best interests of all the children subject to the [TPR] petition that J.D.M.’s parental
rights be terminated.” There was no abuse of discretion in the decision that terminating
J.D.M.’s parental rights was in his child’s best interests.
6. Reasonable efforts
As mentioned above, the district c ourt’s order enumerated 63 services that CCFS
provided to A.L.R. and J.D.M., including during the period when J.D.M. was incarcerated.
The district court noted that his “incarceration and refusal to keep in contact and cooperate
with CCFS frustrated efforts towards reunification.” J .D.M. refused to accept services to
deal with the sexual abuse alleged by Child 1 and corroborated by Child 2 because J.D.M.
has not admitted the abuse; he refused services to improve his parenting skills because he
believes his parenting skills are adequate.
J.D.M. also argues that “given [his] incarceration during a pandemic for
approximately 7 months during the case then his move to Nebraska, CCFS failed to
establish that services were available, timely, or truly realistic under the circumstances.”
But CCFS did what it could; neither J .D.M.’s incarceration nor his decision to move to
Nebraska was within the control of CCFS, and his refusal to accept some services and to
complete a psychosexual assessment prevented the services CCFS did provide from
bringing about reunification.
The district court did not err in concluding that CCFS made reasonable efforts to
reunite J.D.M. with Child 3 but that these efforts were unsuccessful , that J.D.M. failed to
comply with the duties imposed by his parent -child relationship with Child 3, and that it
was in Child 3’s best interest to terminate J.D.M.’s parental rights.
7. Admission of the Children’s Out-of-Court Statements into Evidence
“We review a district court’s evidentiary rulings, including rulings on foundational
reliability, for an abuse of discretion.” Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d
150, 164 (Minn. 2012).
The recorded forensic evidence of Child 1 and Child 2 concerning J .D.M.’s sexual
abuse of Child 1 was offered under Minn. Stat. § 260C.165 (2020), which provides in
relevant part:
An out-of-court statement not otherwise admissible by statute or rule
of evidence is admissible in evidence in . . . any proceeding for
termination of parental rights if:
(1) the statement was made by a child under the age of ten years . . .
(2) the statement alleges, explains, denies, or describes:
(i) any act of sexual penetration or contact performed with or on
the child; [or]
(ii) any act of sexual penetration or contact with or on another child
observed by the child making the statement;

. . . .

(3) the court finds that the time, content, and ci rcumstances of the
statement and the reliability of th e person to whom the statement
is made provide sufficient idicia of reliability; and
(4) the proponent of the statement notifies other parties of an intent to
offer the statement . . . sufficiently in advance of the proceeding.
(5)
. . . .

For purposes of this section, an out -of-court statement includes a
video, audio, or other recorded statement.

Minn. Stat. § 260C.165.
J.D.M.’s attorney argued that “ if [the state] want [s] to prove that there was some
sort of sexual contact between [J.D.M.] and this child then that child needs to testify to it”
and objected to admission of the recorded statements on two grounds: first, that although
Child 1 was under ten when she was int erviewed, she was now ten and “old enough to
testify,” and second, that some of Child 1’s mental -health records indicate that she is not
always reliable . The district court disagreed, saying it “would find that certainly
paragraph[s] one and two [of Minn. Stat. § 260C.165] have been met, at least in regarding
[a] child who was under the age of ten and physical abuse was described by the child that
they observed or was . . . acted upon them.”
J.D.M.’s attorney also argued that the forensic interviews had n ot been properly
conducted and were “unreliable testimony.” The district court said:
[T]he reliability . . . really goes to the weight of . . . this
evidence. . . . Certainly, . . . if there’s a forensic interview
standard and that standard wasn’t met tha t would go to the
weight of the evidence, but that . . . [is] really not discussed in
[Minn. Stat. § 260C.165] . . . [I]t would go to the reliability of
the person to whom the statement is made. . . . [U]nder that
standard I would find . . . that . . . [the recorded statements are]
admissible.

On appeal, J.D.M. relies not on Minn. Stat. § 260C.165 but instead on Minn. S tat.
§ 595.02, subd. 3 (2020) , which also concerns the admissibility of statements concerning
sexual penetration or contact made by a child under ten but adds the requirement that the
child “either: (i) testifies at the proceedings; or (ii) is unavailable as a witness and there is
corroborative evidence of the act.” Minn. Stat. § 595.02, subd. 3(b) .6 In the reply brief,
J.D.M. argues that “[t]he requirement that out-of-court statements should only be admitted
if the child testifies, or the child is unavailable and there is corroborating evidence, should
be enforced in this matter and in all other child protection matters.” But that would involve
grafting the additional requirement of Minn. Stat. § 595.02, subd. 3, on to Minn. Stat.
§ 260C.165, and this c ourt “cannot supply [to a statute] what the legislature purposely
omits or inadvertently overlooks.” Renstrom v. Indep. Sch. Dist. No. 261, 390 N.W.2d 25,
27 (Minn. App. 1986) (quotation omitted).
J.D.M. also argues in the reply brief that “[t]he legal analysis indicates that the out-
of-court statements of Child 1 and Child 2 are not reliable and should not have been

6 Minn. Stat. § 595.02, subd. 3, was not mentioned at trial.

admitted or relied upon by the district court.” But J .D.M.’s brief does not provide legal
analysis so much as opinion on the reliability of the statements.
The allegations made in Child 1’s interview were not
corroborated by any other first -hand evidence. There was no
physical evidence to support Child 1’s claim. There were no
other witnesses that observed Child 1’s allegations. . . .
. . . Child 1 was not placed under oath for this interview,
nor was she cross -examined. These factors alone call into
question the reliability of Child 1’s interview. In addition, thi s
interview took place right after Child 1 had allegedly made
allegations to a teacher . . . [and] little to no evidence was
presented regarding exactly what those allegations were. . . .
Child 1 stated she knew why she was being questioned. That
. . . is another concerning factor, as it gives the impression that
Child 1 [knew] what [was] expected of her and what she
need[ed] to [s]ay during the interview.

. . . .

Even more concerning is the multitude of evidence regarding
Child 1’s reliability, that was completely ignored by the district
court. . . .

J.D.M. provides no legal support for the implications that child victims of sexual
abuse should be able to produce evidence and witnesses and be subjected to cross -
examination. The district court did not abuse its discretion in admitting or relying on the
recording of Child 1’s interview to terminate J.D.M.’s parental rights to Child 3.
There was no abuse of discretion in the district court’s termination of the parental
rights of A.L.R. and J.D.M.
Affirmed.